Colombo Telegraph

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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