Namibian Government Offers Lengthy Draft RTI Legislation

2 June 2016

The Namibian government has proposed a draft right to information law.

The long-awaited 46-page draft contains a detailed collection of reasons not to provide information and some unusual provisions.

The draft will be the subject of consultations beginning June 13, according to an article in The Namibian with a few preliminary reactions to the draft. Pro-transparency campaigners have been urging the government to propose a bill. (See previous report.)

The exemptions are quite detailed. Summarized, they include:

  • Information obtained in confidence from a foreign state or an international organization,
  • Information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defense of Namibia or the detection, prevention or suppression of subversive or hostile activities,
  • Information about law enforcement, including any record “obtained or prepared by the Namibian Police, or Municipal Police while performing policing services unless such information has been shared in a court of law or does not interfere with the operation of police service.”
  • A section to protect the government’s economic interest contains a variety of clauses, including one that would protect “information has numerous the disclosure of which could reasonably be expected to be materially injurious to the financial interests of a government institution or to the ability of the Government of the Republic of Namibia to manage the economy of Namibia,”
  • Personal information,
  • Trade secrets and related information,
  • Records containing “the results of product or environmental testing carried out by or on behalf of a government institution unless the testing was done as a service to a person, a group of persons or an organization other than a government institution and for a fee.”

Presidential ‘Exclusion’

The draft would not apply to “confidential information of the President of the Republic of Namibia, including, without restricting the generality of the foregoing,

(a)     memoranda the purpose of which is to present proposals or recommendations to Cabinet;

(b)     discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Cabinet for consideration by Cabinet in making decisions;

(c)     agenda of Cabinet or records recording deliberations or decisions of Cabinet;

(d)     records used for or reflecting communications or discussions between Cabinet ministers on matters relating to the making of government decisions or the formulation of government policy;

(e)     records the purpose of which is to brief ministers in relation to matters that are before, or are proposed to be brought before Cabinet or that are the subject of communications or discussions referred to in paragraph (d);

(f)      draft legislation; and

(g)     records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f).

But these restrictions would not apply to information more than five years old or once the relevant decisions have been made public.

Deliberative Process Clauses

The draft law would broadly protect information prepared during the development of policies.

The head of a government institution may refuse to disclose any record requested that contains:

(a)       advice or recommendations developed by or for a government institution or a cabinet minister,

(b)      an account of consultations or deliberations in which directors, officers or employees of a government institution, a cabinet minister or the staff of a minister participate,

(c)       positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of the Government of Namibia and considerations relating thereto, or

(d)      plans relating to the management of personnel or the administration of a government institution that have not yet been put into operation,

However, the exemption would not coveran account of, or a statement of reasons for, a decision that is made in the exercise of a discretionary power or an adjudicative function and that affects the rights of a person; or a report prepared by a consultant or an adviser who was not a director, an officer or an employee of a government institution or a member of the staff of a minister at the time the report was prepared.”

However, the government could not refuse to disclose “a draft report of an internal audit of a government institution if a final report of the audit has been published or if a final report of the audit is not delivered to the institution within two years after the day on which the audit was first commenced.”

The draft law also says the government “is not required to indicate under subsection (1) whether a record exists.”

Requests are to be processed in 30 days normally and no fees are to be charged.

An information commissioner would be created to handle appeals and issue nonbinding recommendations. Requesters and the commissioner can appeal matters to court.

Unusual Provisions

The draft contains a number of unusual provisions.

For example, the last phrase of the very first paragraph:

An Act to provide for the right of members of the public to access information under the control of public/government authorities or any private body that may assist in the exercise or protection of any right.

The procedure for selecting an information commissioner begins in an unusual way:

The President by the recommendations of National Assembly shall appoint an Information Commissioner after a request has being made through the media, ….

Unlike some FOI laws where the special creation of records in response to a request is resisted, the draft bill appear to support it in this provision:

Records produced from machine-readable records

(3)       For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution or any relevant private institution using computer hardware and software and technical expertise normally used by the government institution or any relevant private institution shall be deemed to be a record under the control of such institution.

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