27 September, 2020

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The Draft FOI Act Is Better But Inferior To What Our Neighbours Have

By Wijayananda Jayaweera

Wijayananda Jayaweera

Wijayananda Jayaweera

Our neighbours in Bangladesh, India and Nepal have enacted reasonably good Right to Information laws. They are exceptionally good in sufficiently guaranteeing right of access to information generated, received and held by public bodies, subject only to such limitations as are necessary and narrowly established for reason of an equally or more compelling public interest. We have been agitating for a good Right to Information law since 2003 and finally the Cabinet has approved a draft Act. It is good to note that, unlike the very broad and questionable exemptions proposed in the 19th Amendment text on the Right to Information, the exemptions to accessible information in the Cabinet approved draft are now somewhat narrowly defined. However the retention of the contempt of the courts and the parliamentary privileges in the exemptions list is completely unjustifiable as a number of other commentators have already pointed out.

The most self defeating clause of the Cabinet approved draft is the Section 31, according to which reuse of the information obtained through the Act is being discouraged. Section 31 says that “the granting of any information under this Act shall not be construed as an authorisation or approval granted by a public authority or the Commission for the publication of such information by the citizen to whom the access was granted.” This provision effectively disempower the journalists from reusing such information in their own publications. Moreover, this provision might encourage interested parties to seek court injunctions to prevent a journalist reusing such information in his or her attempt to expose corruption, malpractices and inefficiency. This unwarranted provision is really a hindrance for those activists who wants to use the FOI law to foster culture of transparency and accountability in public authorities as intended in the preamble to the Act. There was no need for this provision. If the concern was to protect copyrighted information it should have been mentioned explicitly by stating that the granting of access to any information copyrighted to a third-party in consequence of a request made under this Act shall not be taken to constitute an authorization or approval granted by a public authority or the Commission, of the publication of such information. The Law makers should understand that the public bodies hold information not for themselves but as agents of the public and custodians of the public good. Thus, there should not be any dubious restrictions on the reuse of information by the public once they have obtained the information in the manner prescribed in the Act. There is no such disempowering provisions in any of the good FOI laws implemented in the neighbouring countries. We don’t deserve a less empowering FOI law than the laws our neighbours have.

Another disempowering aspect of the draft is the ability of the President to remove the members of the Independent Information Commission if the member is considered to be a misfit in the opinion of the President. This provision threatens the independence of the Commissioners and might lead to situations where the Commissioners will be compelled to protect the political interests of the President when revealing of certain information could embarrass the administration. This provision in fact contravene the selection process of the Commissioners mentioned in the draft Act, according which the President is expected to appoint commissioners nominated by the Constitutional Council through a consultative process. In a similar manner, the removal of any member should be done only on the basis of a recommendation made by the Constitutional council, rather than a mere opinion formed by the President.

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Latest comments

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    Sir
    Most defeating, disempowering and disabling thing about this act is not the control of president, but the visible shameless purposeful lack of a mechanism to get information from NGOs and Corporations.
    The corruption and bribery involves the government in one hand and the private sector and NGOs on the other.
    This is a castrated bill. People will continued to be robbed and hoodwinked in broad daylight by these establishments. This article is part of the deceit campaign. You write against the people of this country.

    • 0
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      Sir, Please read the Section 46 of the draft Act approved by the Cabinet.
      Accordingly the proposed law is applicable to the NGOs which receive funds from the Government, Foreign Governments or International Organisations. True, it does not cover the corporations, but covers private companies which have government shares over 25% or have been assigned to carry out public functions or services. The proposal that the law should be applicable to political parties has been deleted by the Cabinet.

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