Key concerns about the RTI Bill II
Best practice on the Right to Information (RTI) Legislation requires that a request for information must be granted if the public interest in the disclosure of the information outweighs the harm to the interest protected under the relevant exemption.
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Exemptions
A comprehensive reading of the AU Model Law indicates that:
1. There is a presumption that information held by public bodies can be accessed by members of the public. If any information is to be exempted, it is the responsibility of the public officer declaring the exemption to justify why such information should qualify as exempt information.
2. Blanket exemptions or exemptions that are too broadly formulated as to have the effect of derogating from the right to information cannot be justified;
3. Exemptions can be justified only if they are necessary to protect the public interest or the rights and freedoms of others. This is also affirmed in Article 12 (2) of the 1992 Constitution of Ghana;
4. Exemptions must be subject to a sufficient harm or public interest test;
5. There ought to be a direct causal link between disclosure and the harm;
6. The limitation should be narrowly formulated and proportional to the legitimate purpose for which the exemption is required.
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What the Ghanaian RTI Bill provides:
- Clauses 5 and 6 of the Bill place blanket exemptions on every information from the Office of the President, Vice President and the Cabinet;
- Information from the Office of the President, Vice President, Cabinet and law enforcement agencies is regarded as national-security protected information. See Clause 5-17;
- Clause 7(3) makes all information created by or in the custody of the securities and intelligence agencies totally exempt;
- In the Bill, exemptions are too broadly formulated or vague; see clause 13 and clause 17 (2) (b) and (d). See also clause 10(c);
- There are repetitive exemptions in the Bill which make them unnecessarily numerous - compare clauses 7(1) (a) & (b) with 9(b). Clause 28(1) (a), (c), (e) and (f) are wholly unnecessary and are not based on the harm or public interest test;
- When information is urgently required, applicants need to give reason for their application. See Clause 1 (4) in the Bill;
- In the Bill, the conditions for refusal of access to information go beyond the AU standards, as well as internationally accepted standards. See Clause 28.
Problems
• All the provisions listed above, if not reviewed, will enable the government and public officials to withhold information when there is no justification not to make the disclosure;
• Because the right to information is a fundamental human right guaranteed under the constitution, its limitation can be justified only if it is reasonably necessary for the protection of the public interest or the rights and freedoms of others as provided under Article 12 (2) of the constitution;
• The requirement that applicants are to give reasons for urgent applications will enable the government and public officials to withhold information from the public.
Access to information laws in other countries
Nigeria
Article 19(2) of the Freedom of Information Act, 2011 provides that an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.
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Sierra Leone
The Sierra Leone Right to Access Information Act, 2013 provides under Article 12(2) that information shall not be exempt where the public interest in accessing the information outweighs the harm in accessing that information.
Liberia
In Liberia, a public authority may not refuse access to or disclosure of information simply by claiming it as “confidential or secret”. Before information can qualify for exemption from disclosure, it must satisfy, among other issues, that the harm to be caused by the disclosure is greater than the public interest in having the information disclosed. See Chapter 4.8. Freedom of Information Act, 2010
Suggestions for review of Ghanaian Bill
a. Harms test should be implemented for all exemptions- that is, it should be proven that the harm caused in disclosure is greater than the public interest in disclosure;
b. Applicants should not be required to give reasons to public agencies for seeking access to information, even when the application is urgent, as this deters applicants. We suggest the removal of Clause 1 (4) of the Bill;
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c. The clauses in the Bill should be made more concise.
Source: Right to Information Coalition, Ghana, April 2014.
Picture of a parliamentary session : Parliament is yet to pass the Right to information bill.