Thursday, July 17, 2008

Freedom of Information Laws

Freedom of Information Laws
Kaieteur News Editorial. On July 15, 2008

If we were to go by the statements of our political elite it would appear that all of them are in favour of us having a “freedom of information” (FOI) law in our country.

According to one member of the government bench, it is only a matter of timing and getting certain prefactory matters settled.

This is something of a rarity in our fractured politics and we can only hope that this landmark legislation will soon be enacted.

After all, there is so much that is shrouded in secrecy that the average citizen can be excused for becoming a bit jaded.

A FOI law is therefore also for the benefit of those who are in office since it is their honour that can more easily be saved providing access to the facts.

With the common origin of our legal systems as former colonies of Britain, we thought it might be of interest to identify some features of the FOI law in some Commonwealth countries.
We have selected South Africa, India and Pakistan because of their varied developmental trajectories.

South Africa’s Promotion of Access to Information Act (PAIA) came into effect in 2000. India promulgated its Right to Information (RTI) Act in 2005, while Pakistan issued its Freedom of Information Ordinance (FIO) in between them in 2002, in rather troubled times.

The primary lesson that strikes a reviewer is that the design of the FOI legislation is crucial since, as numerous experts have pointed out flatly: “where legislation is inherently weak, implementation will automatically fail”.

In both India and Pakistan, all citizens are granted the right to access public records but in the South African legislation, citizens can access information held by all private as well as public bodies.

This is unique. Civil society had a very prominent role in drafting the South African legislation and this may explain its expansive reach.

While one may believe that there would be a clear statement of what is the meaning of a “Right to Information”, in South Africa and Pakistan there is no such provision.

In India it is spelled out: “the right to information accessible under the Act which is held by or under the control of any public authority and includes the right to (i) inspection of work, documents, records; (ii) taking notes, extracts, or certified copies of documents or records; (iii)taking certified samples of materials; (iv)obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.”

In terms of applicability and scope of the legislation, South Africa’s is succinct and applies to “any Department of Government, body performing public function under any legislation and private bodies where the information is required for the exercise or protection of any rights.”

The Pakistan variant is somewhat more specific: “any Ministry, Division or attached department of the Federal Government; Secretariat of Parliament; any office of any Board, Commission, Council, or other body established by, or under, a Federal law; courts and tribunals.”

India is most expansive and includes any authority or body established or institution of self-government established or constituted: (i) by or under the Constitution; (ii) by any other law made by Parliament or a State Legislature, (iii) by notification made by an appropriate government, and includes (a) any other body owned, controlled or substantially financed and (b) non-government organisation substantially financed; by funds provided directly or indirectly by the appropriate Government.

For “public interest” disclosure, in South Africa, both public and private bodies must disclose information when there is evidence of substantial contravention of law or imminent and serious public safety or environment risk involved. And the public interest in disclosure outweighs the public interest in refusing.

In India, information may still be disclosed if the public interest in disclosure outweighs the harm to protected interests notwithstanding anything in their Official Secrets Act.

In Pakistan, the government can broadly refuse to disclose any other record from the purview of this Ordinance in the public interest.

The required time for providing access to information is clearly stated in all three jurisdictions: In South Africa, it is within thirty days of request; Pakistan, within twenty one days; and India, thirty working days for granting or refusing the information request or forty days where confidential third party information has been requested.

1 comment:

Ordinary Citizen said...

People interested in this post will likely be interested in The Access Initiative, which looks at not only freedom of information but other law and practice needed to make public participation work.

More here: