By Rohan Samarajiva –

Prof. Rohan Samarajiva

As a public proponent of the Right to Information (RTI),[1] I support the enactment of Right to Information Act. The comments below are intended to improve the legislation, caution against over-reach, and make the law easier to implement effectively. I applaud the call for comments published in the newspapers on 23 February 2015 which is very much in the spirit of RTI.

I have based my comments on the draft Right to Information bill (LDO 24/2003), downloaded from Manthri.lk. I shall be pleased to comment on a different draft if such exists.

The objective of the Act as given in the preamble is to allow the people of Sri Lanka to “more fully participate in good governance and actively participate in combating corruption in the country’s public life.” The right that is to be created by the proposed Act is limited to official information that is in the possession, custody or control of a public authority (s. 2). However, in what appears to be a later insertion in the interpretation section, s. 40 defines a public authority as “a semi-public or private entity or organization rendering any public service,” thereby vastly expanding the scope of the proposed Act. This expansion creates possibly unresolvable ambiguities, money-making opportunities for lawyers and a host of potential negative effects for private individuals and organizations. It deviates from the objective of the Act. I urge the Committee to retain the conventional scope of the right to access information to government bodies and not to extend it beyond the commonly understood meaning of public authorities. In instances when a private for-profit or non-profit organization acts as the agent of government through a contract or similar instrument the obligations imposed on government may be extended to the activities performed in the capacity of agent. Here, it is necessary to minimize the compliance burdens imposed on organizations below a certain size, as defined by annual turnover.

• The term “public service” in s. 40 is undefined in the Bill. Possibly, this is because it cannot be precisely defined. One could claim that the act that I am engaging in at this moment, that of analyzing draft legislation and proving informed commentary thereon, is a “public service.” I am engaging in this activity as an individual and not on behalf of an organization. Does this bring me within the scope of the RTI Act as a “private entity” rendering a “public service”? This is obviously absurd. But it is well within what the proposed language permits.
• The above described absurd outcome may be avoided by striking the term “entity” from the definition of public authority under s. 40 and by providing a clear definition of a “semi-public or private organization.” It is true that striking the term entity will avoid potentially dragging in 20.3 million individual citizens within the scope of the Act, but is it possible to provide an unambiguous definition of a “semi-public or private organization,” especially in the context of the remainder of the interpretation section, which carefully defines in sub-clause (f) the companies that fall within the scope?[2] Does it make sense for sub-clause (f) of the definition given in s. 40 to exclude companies that are not under majority control of the government only to drag them back within the scope through sub-clause (g) of the definition on the ground that they provide a vaguely defined “public service”?
• The issue hinges on the definition of “public service,” a term that is undefined in the draft and which I argue is undefinable. I am an expert on public utilities and infrastructure. In my field, utility and infrastructure services are commonly described as public services.[3] They are subject to obligations that go beyond those that apply to ordinary companies. But they are not derived from general law, but are instead imposed by sector-specific laws, licenses or concession contracts. Does Laughfs fall within the scope of RTI legislation by providing LPG as cooking fuel to households, arguably a public service? Does the micro entrepreneur who uses two or three delivery persons to transport gas cylinders to households also fall within the scope of the Act because he is an “organization providing a public service” even if not a company registered under the Companies Act? The only way to avoid these ambiguities is to strike the entirety of sub-clause (g) under section 40 from the draft and restore the integrity of the Act as one that focuses on the special responsibilities of government entities.
• It is common in institutional design to ensure that the scope of any Act or legally created right or obligation is clearly demarcated both to provide certainty and to reduce the workload on the executing authority. The broadening of the meaning of public authority fails on both grounds. The RTI Commission would have to be a very large organization to administer an Act that includes the present definition of a public authority. It will diffuse its energies over a large number of appeals and will, as a result, do a poor job even with its core activities.
• It must be understood that RTI imposes costs upon any organization. It requires documentation of decisions, methodical record keeping and ability to quickly retrieve information without omission, none of which are costless. In addition, s.23 of the draft bill requires all public authorities to appoint one or more information officers. From my experience as the Director General of the Telecom Regulatory Commission, I can understand the costs that would be incurred by that organization. These costs could potentially cripple a small non-profit organization providing public service.
• Other instances of costs being imposed on small organizations that happen to fall within the expanded definition of public authority are (i) the duty to maintain records “duly catalogued and indexed” for a period of ten years (s. 7), and (ii) the requirement to submit reports annually to the commission (s. 10).
• It is commonly understood that information is a critical element in competition. An RTI Act should not provide the tools to gain access to internal information that has competitive implications. Most, if not all, government organizations are monopolies (or they should be). In addition, they have an agent-principal relationship with the citizens who created them and who they act on behalf of. Therefore, it is acceptable to impose RTI on government organizations, though even here, all RTI statutes provide exception clauses. Jerry-rigging the draft is inadvisable because the exceptions that may be adequate for government are inadequate for private and semi-public entities or organizations.
• Where a private for-profit or non-profit organization acts as the agent of government through a contract or similar instrument the obligations imposed on government may be extended to the activities performed in the capacity of agent, and not the entirety of the business of the agent.

It may be necessary to align the “right of access to official information which is in the possession, custody or control of a public authority” (s. 2) and the “duty” of every officer in any public authority set out in s. 4. The language in s. 4 may be interpreted as limiting the duty to provide information pertaining to a decision that “affects any person in any way” ONLY in response to “a request made in that behalf by the person concerned.” In contrast, the language defining the right in s. 2 is broad and not anchored on a person affected by the decision. The simplest solution may be to delete s. 4, which appears, on the face, to be a later, uninformed insertion.

• The drafting suggests a confusion of understanding between a Citizens’ Charter (CC) and RTI. CC is essentially a service-level agreement between the government as service-supplier and the citizen. The service-supplier promises the service will be provided in x time and y quality if all the requirements are met. If not, remedies are specified. The RTI is more general; the information requestor need not be a direct party, e.g., a citizen can request information on how permission was given to fill wetland, even if she has no direct interest in the land or the transaction.
• The apparent insertion of new language pertaining to “decision which affects any person in any way” introduces unnecessary confusion. For example, a request for agricultural research information in the possession of the Department of Agriculture may be seen as falling outside the scope because it is not a decision that affects a person in any way.

s.5, which sets out the exceptions is one of the most important in the draft. It appears adequate, though there may be merit in assuring clarity by specifically including exceptions in the interest of free and open expression of views pursuant to reaching a decision for (a) judicial proceedings, except in terms set out in judicial procedure; (b) mediation proceedings, including regulatory proceedings, except in terms set out in the relevant procedures; and (c) cabinet discussions at all levels of government, including provincial and local-government. The decisions should not be protected by the exception.

5(1)(a) contains undefined language: “invasion of personal privacy.” Privacy is a difficult term to define in the best of circumstances.[4] It may be advisable to draft the exception in terms of the more common form of “personally identifiable information.”

Increasingly, official information is created, stored and communicated entirely in electronic or softcopy form, with no hardcopies ever being created. The draft does not appear to have taken this into account. It may be advisable to include some broad language that could accommodate non-paper records. However, in light of the weak state of government information and communication practices, exemplified by the pragmatic use of a commercial gmail address to receive this submission, it would be prudent to provide for a grace period of, say, five years for the electronic provisions to take effect. The Act should impose specific responsibilities on the Ministry of Public Administration and the ICT Agency to implement the necessary electronic record keeping and communication practices.

*Professor Rohan Samarajiva -Commentator on public policy issues & former Director General of Telecommunications

[1] RTI became a high-profile issue in the 2011 local-government elections when the former Minister of Justice and Law Reforms who had sought to enact national RTI legislation, running for Mayor of Colombo as the UPFA candidate, included it in his policy platform. The UNP included it in its policy platform for the Jayawardenepura-Kotte Municipal Council. I played a role in these debates: e.g., http://groundviews.org/2011/09/15/why-is-right-to-information-in-the-moragoda-mayoral-manifesto/ .

[2] By the way, the drafters appear to be unaware of the fact that the Companies Act, No. 17 of 1982, has been superseded by new legislation.

[3] E.g., the regulatory body for such services in the State of New York is called the New York State Public Service Commission: http://www.dps.ny.gov/.

[4] Solove, D.J. (2008). Understanding privacy. Cambridge MA: Harvard University Press, p. 174.