20 November, 2018

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The Right To Information Act No.12 Of 2016: A Rare Bright Spot In Our Flawed Democracy

By S. Ratnajeevan H. Hoole

Prof. S. Ratnajeevan H. Hoole

Failures and Successes

Elected to restore democracy, the interminable postponement of elections on petty excuses is a big blot. Non-progress on reconciliation is best captured by its partner, the TNA, saying Tamils have reached the end of their tether. The independent Commissions have no funds to include all members in the work (Election Commission) or funds but no work or TOR (Delimitation Commission). Minister Patali Champika Ranawaka says the Commissions are toothless white elephants, and that the Audit Commission and National Procurement Commission cannot function for lack of enabling legislation. The Police Commission chairman resigned giving an unbelievable excuse because he could not deliver on account of obstacles.

Even the co-sponsorship of UNHRC Resolution 34/L.1 which promises “to fully implement the measures identified in the resolution [30/1] of 2015,” is not convincing of our intentions on reconciliation. For, even as 30/1 calls for the prosecution of war criminals with the use of foreign judges and is unfulfilled, the President and PM say there will never be foreign judges. Moreover, the President adds in hot speeches before the Army and Monks that he will never allow “national heroes” who massacred Tamil civilians in defeating the LTTE to be charged.

With that horrible record, there are some notable achievements, however, that fail to get the credit they deserve. One important achievement is the absence of fear. Another is that water-starved Jaffna now has many huge water tanks coming up. As the infrastructure is nearing readiness, it is bickering among us Tamils on whether Water from Kilinochchi can be diverted that introduces uncertainty over water for Jaffna. Water tanks without water would be like our democracy without elections. If that water is refused, the tanks will use seawater desalinated by reverse osmosis, which however will be expensive.

RTI – Towards Open Meetings

The most recent, significant achievement in governance is our Right to Information Act (RTIA). Many countries claim to be democracies but all are flawed. What is important is that we move towards being a democracy. Over 100 countries around the world have RTI Laws, Sweden’s 1766 Freedom of the Press Act having been first. Such acts are usually borne of a thirst for freedom following an era of autocracy as ours was after our shackles were removed in 2015. RTIA empowers us to find out what our rulers are doing by giving us access to government documents.  Our global RTI rating is at third place. Scoring 131 out of 150, we are just behind Mexico (136) and Serbia (135), barely ahead of India at 128 (whose laws were borne of the suppression of information, press censorship and abuse of authority during the Emergency of 1975-77). Surprisingly many Western European countries and the US (83), Canada (90), Australia (83) and China (70) score poorly, well behind Russia (98).

One of Many Water Tanks; this at Naayanmaarkattu will be ready by June

The US has a low score because its Freedom of Information Act (FOIA) was enacted in 1966 before the world’s legacy of human rights blossomed, and after years of debate over the opposition of President Lyndon Johnson. FOIA emphasizes the devolved nature of power and leaves it to state governments to make their own FOI laws. FOIA has many exemptions. Officials need not comply with requests to do research, answer written questions or create records like lists of statistics. RTIA is far ahead.

Rights: Abridged by Culture of Arrogance

In the past, our administrators had tight control on information. “It is confidential” they would say. “Why do you want to know?” they would ask. Now we need to go to the same people who are bound by RTIA which says (Section 3(1))

Subject to the provisions of section 5 of this Act, every citizen shall have a right of access to information which is in the possession, custody or control of a public authority.

Any information, whether at the central government or provincial or local! Access to information is a right. The person wishing access does not have his right abridged by administrators approving the reasons for requests. The RTIA, in our democracy, is about distributing power from our rulers to us citizens. Administrators, who once controlled the release of information, have had that power removed by RTIA. They need to accept that and learn to live with the change.

However, I have already seen the old habits dying hard as those requesting information are asked why, thereby violating RTIA’s 24(5)(d). To exercise a right that is ours, we need no reasons. To refuse us, the onus of giving reasons falls on administrators.

Restrictions on RTI

The restrictions on the information to be supplied through RTI are stated in Article 5. For most practical purposes 5(1)(a) would be where we meet everyday requests:

5. (1) Subject to the provisions of subsection (2) a request under this Act for access to information shall be refused, where –

(a) the information relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the larger public interest justifies the disclosure of such information or the person concerned has consented in writing to such disclosure;

Subsections 5(1) (b) to (n) will not concern most of us because they are obvious exemptions on the disclosure of medical records or exam papers, and rare occurrences like affecting a criminal investigation or national defence. We will leave that out of this general article.

Most problematic RTIA requests would relate to 5(1)(a) where the key phrase is

“personal information the disclosure of which has no relationship to any public activity or interest”.

At the Election Commission, for example, if there is a request for voter registration lists, one objection may be that it is a violation of privacy and will help commercial interests make mailing lists. On the other hand, the public and national interest justifies the disclosure in a) preventing ghost voters on voter lists and strengthens democracy and b) eliminating the practice of giving false addresses to exploit regional quotas for university admission.

However, Section 5(4) is relevant:

[A] request for information shall not be refused where the public interest in disclosing the information outweighs the harm that would result from its disclosure.
Public interest is harmed when we refuse to release such germane information that would deter cheating. It is in the public interest to make mailing lists to inform the public on policy matters and even good commercial products. Parliament has subjected all data to disclosure, and we have no business subverting a law just because we think it is bad law or think someone will profit.

Private Sector

RTI laws typically exclude the private sector from their jurisdiction. With privatization on government’s agenda, information presently in the public domain may shift to the private sector. Perhaps being mindful of this, the law covers many private entities. These are institutions where the government has more than a 25% interest; a private entity carrying out a statutory or public function, but only to the extent of activities covered by that function; NGOs that are substantially funded by the government, a foreign government or international organization; higher educational institutions including private universities and professional institutions; and private educational institutions.

Our Unpreparedness

All agencies are required to designate Information Officers to contact for information, and Designated Officers (DOs) to hear appeals. This has not been done in many institutions, particularly in appointing DOs and staff for handling the massive load of work. Cadre positions and large budgets will be required.

At many agencies, I see untrained officials unable to realize that they must comply with information requests in time, and unlawfully asking why the information is being requested and even denying requests. I do not see the prescribed contact details of the RTI Commission, IO, DO listed prominently at these agencies and their websites, including the IO’s email address and fax number since emailed or faxed information requests are also permitted in addition to oral requests. Private agencies, especially schools, generally will remain unaware of their RTIA obligations unless someone tells them.

I have seen US FOIA officials swamped with work and unable to meet statutory deadlines even with large staffs and dedicated copiers. Redaction when necessary would demand skilled manpower. With requests for research definitely on the horizon for us unlike the US, and only one IO at most agencies, I do not know how we will cope.

Fees

Generous fees have been prescribed by Gazette No. 2004/66 – Feb. 03, 2017. Free are forms and their processing, reports by email, the first four A4 sheets of reports, whether printed or photocopied. Thereafter it is Rs. 2 for one-sided and Rs. 4 for double sided A4 photocopies, Rs. 20 for copying information on to a mass storage device etc.

Significantly departing from the US where no research work can be demanded, the fee for study or inspection is Rs. 50/hour with the first hour free. That is well below a labourer’s rate.

These commendably low rates will add to the work. Can we cope?

Prognosis

Like our muscles, rights need to be exercised to be strong. Will we? We must, and thereby safeguard this rare bright spot in our flawed democracy.

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Latest comments

  • 0
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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

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    It’s always nice to see an article by the Prof. Clearly in the spirit of the RTI he is telling the public the importance of knowing their rights and exercising them.

    In the US we have a similar act but the public can choose what the government can and cannot share, for example home address – is this correct? Can we do this in Sri Lanka?

  • 5
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    The background in the photograph is too bright. The photograph would have been much nicer had the professor and photographer moved a little away from the tank, the photographer knelt down and held the camera about 25-40 degrees upwards capturing the professor at roughly the same height as the tank. That way a towering image in support of the points made in the article could have been achieved, with the dog and stick giving additional strength :-)

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      This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

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      Hey Tee Twenty! I agree, I could have taken a better picture. There was a watchman there who was chasing us off the compound so the picture was taken in a hurry. But you can see how much my father and dog are enjoying Jaffna :)

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        Daughter,

        “There was a watchman there who was chasing us off the compound so the picture was taken in a hurry.”

        We have also been chased away from a huge water tank under construction:)

  • 3
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    Hello Prof. Hoole, I was one of your students in Pera. Keep writing on important topics such as this!
    On RTI Act, general public has a poor knowledge. Actually, Government should create awareness among general public through mass media. This has been stated in RTI act. But They don’t do purposefully to keep people in the dark. This law was only brought to existence because of pressure from international community..

    • 0
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      Thanks Yan

  • 2
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    If the water is coming that quickly, does Jaffna have a City Analyst as in Kandy or the Govt. Analyst’s as in Col. 7.

    Will the rushing waters bring cadmium pollution to the ground water in Jaffna?
    Most pipelines in the homes are old and the water must be checked for lead pollution too.

    There was a mineral oil deposit in wells recently, hushed up by Jaffna’s Engineering Faculty Dean, who had vested interests. With Jaffna University’s dons having poor credibility an independent body must be available in Jaffna for citizens to even privately pay for water analysis.

    The Govt. Analyst puts out Quality Standards for food and water among other, but people in businesses often pay their way through.

    May be the Manager’s Forum will take notice:
    Jaffna must have a City Analyst.
    Ground water is very sensitive to pollution.

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      Cadmium n Lead,

      “Most pipelines in the homes are old and the water must be checked for lead pollution too.”

      I believe that rural Jaffna has a problem with plastic tanks and pipes. Plastic with heat and UV results in contaminated water.

      “With Jaffna University’s dons having poor credibility an independent body must be available in Jaffna for citizens to even privately pay for water analysis.”

      Water Board in Chundukuli.

      “There was a mineral oil deposit in wells recently, hushed up by Jaffna’s Engineering Faculty Dean, who had vested interests.”

      Some RTI enthusiasts should obtain the lab results and start public discussion.

      “Ground water is very sensitive to pollution.”

      My questions regarding the huge tanks under construction:

      what is the quality of the water now and how will it be when the tanks are used?

      How will the tanks be filled? Many villages have local community water systems where the water from a better than other wells is used. Pumping water from a good well to fill a huge tank is likely to destroy the good well or impossible.

      I still haven’t understood what the ADB financed R/O water from Mathukerny will be used for.

  • 0
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    Dr Jeevan Hoole,

    “At many agencies, I see untrained officials unable to realize that they must comply with information requests in time, and unlawfully asking why the information is being requested and even denying requests. I do not see the prescribed contact details of the RTI Commission, IO, DO listed prominently at these agencies and their websites, including the IO’s email address and fax number since emailed or faxed information requests are also permitted in addition to oral requests. Private agencies, especially schools, generally will remain unaware of their RTIA obligations unless someone tells them.”

    The public authorities need more time to learn and more people who make RTI requests. This is just the beginning.

    “I have seen US FOIA officials swamped with work and unable to meet statutory deadlines even with large staffs and dedicated copiers.”

    I have heard of the State Department or some parts of it needing 2-3 years to send the requested documents. In the USA it is possible to request copies of all the written communication from government servants. I think that we cannot do this in SL.

  • 0
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    I applied to RTI on 03rd and again on 22nd February, 2017 for information as to why my pension anomaly had not been rectified, so far, in accordance with Public Administration circular 16/2015 and why the Pension Department is not responding to or acknowledging receipt of or replying my several letters sent by e-mail and registered post. I drew RTI Information Officer’s attention by e-mail on 21st March. I regret that I had not been favored with any reply so far.

    I wonder whether the much publicized RTI act and the present manner in which it is administered will serve the requirements of the Public.

    Velauthapillai
    Govt: Pensioner

    • 0
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      Mr. Velauthapillai,

      I think you need to ask for a document, not why your pension anomaly has not been rectified.

      Try asking for the document or minutes where a decision on your request has been recorded.

      After 2 weeks, and within the next two weeks (or two weeks from the date of refusal if you are refused)complain to the designated officer.

      Here is what the act says further
      31 (2) The designated officer shall issue a receipt on the
      acceptance of the appeal, to the citizen making the appeal,
      and in any case within three working days.
      (3) The decision on any appeal preferred under subsection
      (1), shall be made by the designated officer within three
      weeks of the receipt of the appeal and shall include the
      reasons for the said decision including specific grounds for
      the same.

      After those two weeks complain to the RTI Commission

      Good luck with your pension

      • 0
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        Dr Jeevan Hoole,

        “After 2 weeks, and within the next two weeks (or two weeks from the date of refusal if you are refused)complain to the designated officer.”

        If I remember correctly starting from this appeal to the DO any other person can be authorized to take over. In India there are people who help the oppressed with their RTI requests. Since there have been mass requests in Mullaitivu and Mannar I assume that such persons already exist here also.

        “Here is what the act says further 31 (2) The designated officer shall issue a receipt on the acceptance of the appeal, to the citizen making the appeal, and in any case within three working days. (3) The decision on any appeal preferred under subsection (1), shall be made by the designated officer within three weeks of the receipt of the appeal and shall include the reasons for the said decision including specific grounds for the same.”

        It looks pretty clear doesn’t it?

        According to the Act employees etc revealing public information (= that cannot be considered exempted according to the Act) even without a request cannot be punished in any way.

        Interesting times!

    • 0
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      Mr. Velauthapillai,

      “why the Pension Department is not responding to or acknowledging receipt of or replying my several letters sent by e-mail and registered post. I drew RTI Information Officer’s attention by e-mail on 21st March. I regret that I had not been favored with any reply so far.”

      Unfortunately despite the Establishment Code, at least one reminder Circular and the RTI Act acknowledgment is all too often not provided. Best might be to visit the Information Officer or call him or her. He or she has to write down your request and even help you with the details needed like what you are asking for.

      According to the RTI Act you have the right to complain about the lack of acknowledgment and reply.

      The other approach is the “top down” way. The Presidential Secretariat allows complaints and inquiries in many different ways: phone, letter,e-mail and even an Android app. If you contact them they will provide you a reference number and send your complaint to the correct authority. For more information:

      http://tell.president.gov.lk/

  • 2
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    Mr Hole,

    The Dog in your picture looks like a feral dog. We do not like such breeds. I own an award winning champion dog (“Copernicus”) whose won many a Trophies and participated at the world famous Westminster Dog show.

    Copernicus is a champion dog.

    • 0
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      Thank you Lt. Perera. My dog Kadiyan is a St. John/Labrador. He gets the top award from my family for his loving nature and intelligence.

    • 0
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      Lt Perera,

      “The Dog in your picture looks like a feral dog.”

      I have no problem with the dog but the “walking stick” of Dr Hoole looks like something from Korean martial arts:)

  • 4
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    I am truly impressed by Copernicus who seems to have won far more medals than his master.

  • 0
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    Dr.Jeevan Hoole

    My grievance is that I had not been paid my dues and that my several letters regarding this had not been replied. I am, so far, not aware that a decision had been made not to pay me my dues or reply my letters.

    I am also not aware as to who are the Information Officer and Designated Officer in the Pension Department

    Will asking for documents or minutes where a decision on my request has been recorded serve any purpose?

    M.Velauthapillai
    Govt: Pensioner

  • 0
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    Dear Lone Wolf

    I had complained to the Hon: President about my grievance by e-mail and had drawn his attention twice, without any response.

    As advised by you in an earlier similar issue in the CT, I had submitted my grievance to the Hon: President through http://tell.president.gov/lk. I was given a reference number, my grievance forwarded to a particular Officer in the Pension Department and I was directed to contact him.

    I am 78, in bad health, live abroad and suffer from very poor hearing difficulty, that I can’t use telephone. So, I contacted this Officer, three weeks back, by e-mail and was informed that he was not in the country and that he would deal with my case, when he is back in office. I am waiting for some favorable action

    M.Velauthapillai
    Govt: Pensioner

    • 0
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      M.Velauthapillai,

      “I was given a reference number, my grievance forwarded to a particular Officer in the Pension Department and I was directed to contact him.”

      I am very happy to know that what I posted earlier has at least partly worked.

      “I am 78, in bad health, live abroad and suffer from very poor hearing difficulty, that I can’t use telephone. So, I contacted this Officer, three weeks back, by e-mail and was informed that he was not in the country and that he would deal with my case, when he is back in office.”

      I understand your difficulties. In my opinion there should be somebody else to do this job while one officer is on leave.

      What if you try to approach him again now using e-mail and a registered letter?

      Do you have any idea of who is his superior?

      Is there any possibility to tell the “Tell President” that you still have a problem? Like send further information or something using the reference?

      I have not yet used “Tell President” myself.

  • 0
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    Dear Lone Wolf

    Thanks for your concern regarding my grievance.

    When I applied to the “tell.president”, I was given a reference number and informed that my grievance was being forwarded to the Ministry of Public Administration and Management (M/P.A.&M) and was given the name of an Officer and his telephone number to contact. From the websites of M/P.A.&M and the pension Department, I identified the person and his e-mail address and contacted him. He had promptly replied. I am not mentioning his name as it might embarrass him. I waited for 2 weeks and have contacted him again recently, without any response. May be, he is yet out of the country.

    I don’t have any idea of anyone who may be acting for him. His Superior is the Director General of Pension, against whom, I have the grievance that I had not been paid my dues, though 21 months had passed since the circular 16/2015 was issued, and that he had not replied my several letters and reminders sent by e-mails and registered posts from mid June 2016 to mid January 2017. I have complained this matter to the Secretary of Ministry of Public Administration and Management, Hon: Prime Minister, and Hon: President all of whom had referred my case to the pension department, without any results. I have also represented the matter to RTI and “tell.president”

    Should I write to the Director General of Pension again and will it provide me with any positive results?

    M.Velauthapillai
    Govt: Pensioner

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      M.Velauthapillai,

      “I have complained this matter to the Secretary of Ministry of Public Administration and Management, Hon: Prime Minister, and Hon: President all of whom had referred my case to the pension department, without any results. I have also represented the matter to RTI and “tell.president”

      You have done more than I can think about at the moment and much more than I expected. I am becoming curious about your background but you don’t have to reveal anything. You know more than I do.

      Have you applied for an increase of your pension? Has your application ever been acknowledged?

      I found the homepage of Department of Pensions that has lots of information but nothing about the Information and Designated Officers.

      I have a relative who was asked by the Dept of Pensions whether it is worthwhile to pursue an unpaid 50,000.

      Do you have any relatives or others to visit the Dept of Pensions?

      Let me think.

      • 0
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        Two more steps.

        Complain to the Designated Officer.

        If there is no reply, go to the RTI Commission

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          Dr Jeevan Hoole,

          “Complain to the Designated Officer. If there is no reply, go to the RTI Commission”

          If I have understood correctly both the IO and DO are unknown at the moment. I also have not found their names anywhere but many home pages don’t work today.

          The lack of IO and DO contacts is a valid reason for another complaint!

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      M.Velauthapillai,

      “Should I write to the Director General of Pension again and will it provide me with any positive results?”

      If I were you I would write to the Director General and the relevant officer again and try to send a copy to the “Tell President” to update the complaint there.

      I would also make a RTI request to obtain a copy of your original application for the dues to. Since there is no known Information Officer the Director General might be the Information Officer.

      In addition I would complain about the fact that the contacts of the Information and Designated Officers and the RTI Commission are not on the home page.

  • 0
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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

    • 0
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      M.Velauthapillai,

      “I would also make a RTI request to obtain a copy of your original application for the dues to.”

      Should be:

      I would also make a RTI request to obtain a copy of your original application for the dues to the Information Officer and request any documents related to the application that the department has.

      The above request would reveal what the department has provided they answer.

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