Designing Exemptions That Balance Both Effective and Accountable Governance

31 October 2011

By Muhammad Zamir

Zami is Chief Information Commissioner, Information Commission, Bangladesh. He gave this talk Oct. 4 at the Ottawa, Canada, meeting of the International Conference of Information Commissioners. His original title is: “Limiting the limitations: Designing exemptions that balance both effective and accountable governance”

I hope I am permitted to say that our meeting today can be best described as a mutual learning process.

It would be important in this context to share our experience pertaining to the evolution taking place in the upholding of human rights within the matrix of access to information. I believe this is important given the fact that right to information is a basic tool for building robust democratic systems through the informed participation of politically active and conscious citizens interested in matters of public interest.

We must remember that public information is meant not only to protect rights but also prevent abuses by the State. This path is not easy and success depends not only on the tools that we have at our disposal but also in our ability to use them effectively. I recall in this regard the important Chilean case- Claude Reyes v. Chile where the Inter-American Court of Human Rights became the first international tribunal to recognize the right to access to public information as a fundamental human right.

Since then, Chile, through the passage of the Transparency Act and the creation of the Transparency Council in 2009, has emerged as one of the region’s leading countries involved with access to information. It would be important to note here that nearly 20 countries in the Americas have passed access to information laws.

Comparably, in South Asia, till now, only four- Bangladesh, India, Nepal and Pakistan- have Right to Information (RTI) systems in place. Afghanistan, Bhutan and Maldives are seriously considering introducing such process, but Sri Lanka is still debating this principle given their sensitivity over the Tamil problem.

The Bangladesh Constitution and the Right to Information Act, 2009, like Article 13 of the American Convention on Human Rights, reiterates that every citizen has the right to seek, to receive and impart information freely with the exception of certain regime of restrictions.

In the case of Bangladesh, Section 2 (f) of the RTI Act defines ‘information’ as including any memo, book, design, map, contract, data, log book, order, notification, document, sample, letter, report, accounts, project proposal, photograph, audio, video, drawing, painting, film, instrument done through electronic process, machine readable record and official activities of any authority. It is wide in terms of scope and intent.

The exemptions are outlined in section 7 of our RTI Act. They include inter alia: information that may, if disclosed, cause a threat to the security, integrity and sovereignty of Bangladesh; information relating to foreign policy that may affect the existing relationship with any foreign country or international organization; any secret information received from a foreign government; any information relating to intellectual property right; any advance information about income tax, government duties, the budget or changes in the tax rate; any advance information about management of financial institutions or changes related to exchange rate or interest rate; any information, that may, if disclosed offend privacy of an individual or endanger his physical safety or of the public or due judicial process of a pending case including investigation; any information pertaining to a purchase process before it is completed or a decision has been taken about it (consistent with the existing regulations and rules) or any documents to be placed before the Cabinet. A Schedule vide Section 32 also enumerates that the provisions of the RTI Act would not apply (except with regard to information pertaining to corruption and violation of human rights) pertaining to certain State security and intelligence agencies involved in state security and intelligence gathering. Section 9 (4) however tries to level the playing field by stating that whatever be the situation, if a request for information relates to the life and death, arrest and release from jail of any person, the Officer-in-charge shall provide preliminary information thereof within 24 hours.

I have found the presence of almost similar exemptions in a comparative study carried out with regard to RTI provisions in other South Asian countries, China, Korea, Japan, the USA, and several European countries.

The United Kingdom has introduced another new element into the equation. They have expanded the horizon with their NCND principle which permits their authorities to ‘neither confirm nor deny’ that the relevant authority ‘holds’ the information. This apparently is based on the supposition that simply by confirming that the relevant authority holds the information, might be a form of disclosure of exempt information. The UK authorities also have what they term as a ‘Public Interest test’ where they weigh up whether the public interest is in maintaining the exemption or disclosing the information. In this context it was interesting to come across the Foreign and Commonwealth Office cautionary observation that ‘what is interesting to the public is not always in the public interest’.

Exemptions or limitations appear to be more or less similar in the context of RTI and FOIA regimes within the global landscape. Unfortunately, 9/11 events and other associated terrorist attacks have exacerbated this situation and sometimes affected the common person’s chances of accessing to information. In some cases, the practicing of anticipatory self-defense has even led to expanding the areas of exemptions. This has taken place in the USA and a few other countries.

On the other hand there is the function of RTI as envisaged in the 1999 Joint Declaration of the Special Rapporteurs for Freedom of Expression of the UN, OSCE and the OAS. It states that ‘implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth will languish and people’s participation in government would remain fragmented’.

This brings me to the cognizance of the serious principle of State administration following the path of maximum disclosure and good faith. It is also this aspect that persuades me to believe that RTI must be subject to a limited regime of exceptions, which in turn has to be interpreted restrictively, with all the provisions aimed at favoring right of access. Denials of information must in this context be reasoned and the burden of proving that the required information cannot be released should fall on the State. In addition, in the event of any doubt or legal vacuums, RTI should take precedence. Exceptions must not become the general rule and information classified as secret or confidential must be published after a reasonable period of time. This will make public administration more transparent and promote good governance.

There also needs to be an obligation to provide an adequate and suitable legal remedy for reviewing denials of requests for information.

We need to realize that RTI imposes on the State and in our case also on non-governmental organizations (receiving financial support from the State or from foreign development partners) an obligation of pro-active transparency. It also needs to be noted that the information provided should be understandable and available in approachable language and up to date. This will be consistent with the expectations raised by the UN, OAS and the OSCE Special Rapporteurs on Freedom of Expression and their 2004 Joint Declaration. This element will be particularly important with regard to activities that affect members of the public, their budget, subsidies, benefits and contracts.

Let me now touch on admissibility and conditions of limitations within the sphere of right to access to information. In principle, limitations that remove certain types of information from public access is based on their exceptional nature, purported legal and legitimate objectives and the possibility of real danger threatening national security.

Unfortunately, this process of withholding information creates fertile grounds for discretionary and arbitrary action on the part of State bodies that then create the inherent right of classification of information as secret, reserved or confidential. This in turn generates some uncertainty in what citizens can take for granted. Such a scenario might subsequently lead to exceptions becoming the easy way out and a common practice.

In South Asia we are trying to agree that limitations to RTI to seek, to receive and impart information must be prescribed by law expressly and in advance, to ensure that discretion as a tool is not resorted to in an excessive manner. It is being expected that such reference should not be just to any legal norm, but rather to general normative acts. This is consistent with Advisory Opinion 6/86 expressed by the Inter American Court. This is an important factor and needs to be viewed against the requirement of compelling public interest.

The person seeking information also needs to be provided with a reasoned response that provides the specific reasons for which access is denied. In the Bangladesh RTI process this has been ensured for the applicant through Form ‘Kha’ of Rule 5 of the RTI Act, 2009.

Within the contemporary scenario, national security needs are often underlined for exercise of exemptions and for implementing limitations on the free flow of information. It has become a controversial issue. The excuse of national security for not releasing information may be used with regard to immediate threats- for example the particular tactics of an ongoing military campaign- rather than as a tool to prevent embarrassment of officials for previous foreign policy interventions or security associated campaigns.

I feel that secrecy laws need to define national security precisely without being vague or generic. Jurists quite correctly have pointed out that the criteria to be used for determining whether or not information can be declared secret should be unambiguous. This is the only way for ensuring the primacy of public interest. The rules should also include an organogram that stipulates which official or officials are entitled to classify documents as secret and should also set overall limits on the length of time documents may remain so.

There is also need to refer in this context to ‘whistleblowers’ and their obligation to maintain confidentiality or secrecy. I believe that ‘whistleblowers’ revealing information for public good on deliberate wrongdoing by public bodies through action or policies that might pose serious threats to public health, public safety, fundamental human rights as enshrined in law and the constitution or the environment need to be protected against legal, administrative or employment related sanctions.

I also take this opportunity to refer to the landmark Case of Myrna Mack Chang v. Guatemala and the Inter-American Court’s judgment (of November 25, 2003) in the framework of a criminal proceeding (pertaining to an extrajudicial execution) especially when it involves the investigation and prosecution of illegal actions attributable to the security forces of the State. Public authorities should not try to shield themselves behind the protective cloak of official secret to avoid or obstruct the investigation of illegal acts ascribed to the members of its own bodies (security forces). In other words the ‘clandestinity of the Executive branch’ trying to perpetuate impunity is being frowned upon. It would be pertinent here to refer to the important findings in the case- Department of the Air Force v. Rose, U.S. 352.361(1976) which pointed out that if there is a genuine public interest, then government agencies cannot deny access to information by citing the ‘internal’ nature of the information. There is a lot to learn from this for many security agencies operating in South Asia.

It would be fitting here to also share with all of you a few other views regarding accessing to information and how to reduce limitations. We need to understand that lack of clarity, particularly in developing countries is enhanced by poor record management. There 5 needs to be emphasized on the creation and preservation of digitalized police archives and land records to reduce chances of abuse of authority. This will also improve the process of best practice in domestic law and will in turn help individuals to access to State information consistent with Article 19 of the International Covenant on Civil and Political Rights.

We have to appreciate that there is always the need to support the ‘culture of transparency’. We must understand that the First Chamber of the Constitutional Court of Peru was quite correct in its observation of 18 August, 2009 that the legal need for transparency ‘obligates the Administration without requiring justification for the solicitation thereof’. This will reduce the prospect of corruption.

The State also needs to carefully examine and consider the following aspects to off-set any difficulty that may be caused to the process of transparency and in the free flow of information:

(a) Jurisprudence on the obligation to prepare a public version of a document when the requested information is partially confidential;

(b) Jurisprudence on the State’s duty to demonstrate causality and proof of damage in order to invoke the confidentiality of an administrative procedure;

(c) Jurisprudence on the obligation to submit denial of documents for reasons of national security to review in the chambers of the respective Information Commission;

(d) Regulations and jurisprudence to specifically address access to court documents, such as complaints, briefs, motions and evidence. While judges may have discretion in the implementation of exceptions related to access to court information, the RTI law should outline clear, narrow, intelligible standards to guide judges in their decision making; and

(e) Jurisprudence on the obligation not to persecute journalists or editors for their good-faith publication of information (this will of course not apply if there is proof of any personal or monetary gain accruing to the media person arising out of such publication).

Before concluding, I would like to take this opportunity to draw your kind attention to some important suggestions raised by the World Bank Institute in their working paper, Proactive Transparency: The future of the Right to Information with regard to public offices and institutions. I believe that these areas of disclosure merit serious consideration. They are as follows:

? Institutional information: legal basis of the institution, internal regulation, functions and powers.

? Organizational information: organizational structure including information on personnel and the contact information of public officials responsible for providing information.

? Operational information: data being used as a basis for formulating strategy and plans, activities, procedures, decisions, reports, and evaluations.

? Public services information: descriptions of services offered to the public, information on fees and deadlines.

? Budget information: projected budget, actual income and expenditure (including salary information) and audit reports.

? Open meeting information: information on such meetings and how to attend them.

? Subsidies information: information on the beneficiaries of subsidies, the objectives, amounts, and implementation.

? Public procurement information: detailed information on public procurement processes, criteria, and outcomes of tender applications; copies of contracts, and reports on completion of contracts.

? Lists, registers, databases: information on the lists, registers, and databases held by the public body and whether they are available online and/or for on-site access by members of the public.

? Information about information held: an index or register of documents/information held in databases.

? Publications information: information on publications issued and whether these are free of charge or the price to be paid if they have to be purchased.

Such proactive disclosure can be done through- government web portals, sunshine laws which require that regulatory authorities’ meetings, decisions and records be made available to the public and through e-governance programs.

This will help in limiting limitations and assist in the creation of better governance and greater accountability.

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