FLP’s submission on Information Bill No. 34 of 2016

  • 12th August 2016
  • 2016
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Labour Leader Mahendra Chaudhry said the proposed Information
Bill
denied access to information instead of facilitating it and as
Investigate Abdul Khan, says Mahendra Chaudhry such “was nothing short of perpetuating fraud on the people and
the Attorney General must be held accountable for this.                                  

 

The full text of his submission on  Information Bill No. 34 to the Parliamentary Standing Committee on Justice, Law and Human Rights:

Introduction

1. These submissions relate to Bill 34 of 2016 with its objects stated as “… to give effect to sections 25 and 150 of the 2013 Constitution to facilitate the right of access to information held by Government and public agencies; to correct or delete false or misleading information that directly affects a person; to promote access to information and related matters.

2. A FOI law for Fiji has been long overdue. We have had numerous statements from the Bainimarama administration, both pre and post 2014 elections, about the enactment of freedom of information legislation.

3. While freedom of information legislation should be generally welcomed by the public, the same cannot be said for the proposed legislation as we explain in these submissions.

4. The Fiji Labour Party was in fact one of the first political parties to call for freedom of information legislation. Such policy was part of its 1999 election manifesto. Post elections and in government, it had published draft FOI and Code of Conduct legislations but could not see its fruition into law on account of the 2000 coup.

5. We note that the legislation as proposed in Bill 34 severely restricts access to information held by the State or its agencies, confining it only to information which directly affects the person making the request.

6. Furthermore, it also places a prohibition on accessing any information which predates the commencement of the Act.

7. The Constitution – Chapter 8 – Accountability Part B – Freedom of Information s150- requires that a written law shall make provision for the exercise by a member of the public of the right to access official information and documents held by Government and its agencies.

8. Note the title given to this part of the Constitution ie Freedom of Information. Note the words in S150 “…the right to access official information and documents…”

We submit that this constitutional right must not be diminished by subsidiary legislation except in situations where national interest may be impaired as a result of the information being made public.

9. Mr. Chairman access to information is a fundamental right of the people. To underscore the extreme importance of the public’s right to freedom of information allow me to quote from an article by Toby Mendel, a UK based human rights lawyer – This is what he says:

“The importance of freedom of information as a fundamental right is beyond question.
In its very first session in 1946, the UN General Assembly adopted Resolution 59 (I) stating:

“Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”

Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, elaborated on this in his 1995 Report to the UN Commission on Human Rights, stating:
“Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.”
“These quotations highlight the importance of freedom of information at a number of different levels: in itself, for the fulfillment of all other rights and as an underpinning of democracy.

It is perhaps as an underpinning of democracy that freedom of information is most important. Information held by public authorities is not acquired for the benefit of officials or politicans but for the public as a whole.

Unless there are good reasons for withholding such information, everyone should be able to access it.
More importantly, freedom of information is a key component of transparent and accountable government.
It plays a key role in enabling citizens to see what is going on within government, and in exposing corruption and mismanagement.
Open government is also essential if voters are to be able to assess the importance of elected officials and if individuals are to exercise their democratic rights effectively, for example through timely protests against new policies.”

10. We, therefore, propose that the right to access information be open to all official information and documents held by government and its agencies as provided for in the Constitution and that the Act make adequate provisions to facilitate this requirement.

11. We point out that the proposed legislation as it stands in Bill 34 does not fully satisfy the provisions of s150 of the Constitution.

12. Whilst s25(3) of the Constitution provides that a law may limit, or may authorize the limitation of this right – and may regulate the procedure under which information held by a public office may be made available, this, in our view, is limited to the extent where it is necessary to do so in the public interest.

13. It must not be interpreted as a provision authorizing the State to withhold or restrict access to information which does not impair national interest or information the disclosure of which promotes good governance or makes the State accountable to the people.
This is particularly so where citizens wish to access information on public expenditure, and the management of State finances, award of contracts etc.

14. Access to information held by the State and its agencies is a fundamental part of good governance. Many countries around the world have laws which give the public access to information held by the State, with the only caveats being that it would not be in the public interest to release some information as it concerns national security or privacy of individuals.

15. As early as 1759, Swedish explorer Peter Forsskal in wrote:

“… it is also an important right in a free society to be freely allowed to contribute to society’s well-being. However, if that is to occur, it must be possible for society’s state of affairs to become known to everyone, and it must be possible for everyone to speak his mind freely about it. Where this is lacking, liberty is not worth its name.”

16. Definition of “information” (Clause 2)
The whole purpose of this legislation is defeated by the proviso to the definition of “information” in the Bill :

“information” means any material in any from, including a record, report, correspondence, opinion, recommendation, press statement, circular, order, logbook, agreement, sample, model, data or document such as –
(a) a map, plan, drawing or photograph;
(b) any paper or other material on which there is a mark, figure, symbol or perforation that is capable of being interpreted;
(c) any article or material from which a sound, image, or writing is capable of being reproduced with or without the aid of any other article or device; or
(d) any article on which information has been stored or recorded either mechanically or electronically, provided that the material directly affects a determination or decision made by a public agency in relation to the person making a request under section 6:”

17. What this means is that a person can only request information that directly affects a determination or decision made by a public agency in relation to the person making the request. The whole purpose of the Bill is thus defeated by this limitation.

18. What it means is that an individual or an organisation can only request access to information which directly affects the person or the organisation making the request. No other information held by the State or its agencies can be accessed under this proposed legislation. It is in reality, a grave act of deception to pass it off as a law permitting access to information held by the State.

19. If this legislation is passed as it stands in the form of Bill 34 of 2016, it could effectively block even the information which members of the public are currently able to obtain from Ministries and departments through a written request, such as statistical data, reports on socio-economic issues etc.

20. Of concern also is the implication of the Bill on the Media. As the Bill stands, it is likely to affect the media in terms of obtaining information for the purposes of news. Will they be denied access to information unless it directly affects one of them?

21. Will they also have to go through the circuitous processes prescribed in the Bill and wait for as long as three months, in some cases, to obtain information?

22. Have the initiators of this Bill thought through the implications and repercussions of this morbid piece of legislation they are proposing?

23. In New Zealand, the Official Information Act 1982 (OIA) under s12(1) prescribes who may request what information and reads:
12 Requests:

(1) Any person, being—
(a) a New Zealand citizen; or
(b) a permanent resident of New Zealand; or
(c) a person who is in New Zealand; or
(d) a body corporate which is incorporated in New Zealand; or
(e) a body corporate which is incorporated outside New Zealand but which has a place of business in New Zealand,—
may request a department or Minister of the Crown or organisation to make available to him or it any specified official information.

24. Official information is defined in the New Zealand OIA as:
official information—
(a) means any information held by—
(i) a department; or
(ii) a Minister of the Crown in his official capacity; (iii) or organisation; and
(b) includes any information held outside New Zealand by any branch or post of—
(i) a department; or (ii) an organisation;

25. It is our submission that the restrictive definition of information under the Bill be enlarged/ extended to cover broader requests as it concerns State information.

Definition of “Government Company”

26. The definition under the proposed legislation of “Government company” restricts it to a company in which Government owns all stock or shares. It is common knowledge that with public enterprise reform and partial privatization of public entities some government interest has been divested but the Government still has a controlling interest for example in FPCL. With more such divestment of Government shares contemplated, the definition of government company should be amended to include any company in which the State holds majority shares or interest.
27. Objects of the proposed FOI legislation (Clause 4)

The object (purpose) of the proposed law as stated in Cl 4 of the Bill is too narrow and limiting, and does not satisfy the requirements of the Constitution. Any credible FOI legislation needs to have processes that are participatory and promotes the accountability of the State, its Ministers and its officials with the primary purpose being to enhance and promote good governance and adherence to the rule of law.
28. Here again, the New Zealand OIA is again helpfully instructive and reads at s4:
4 Purposes
The purposes of this Act are, consistent with the principle of the Executive Government’s responsibility to Parliament,—
(a) to increase progressively the availability of official information to the people of New Zealand in order—
(i) to enable their more effective participation in the making and administration of laws and policies; and
(ii) to promote the accountability of Ministers of the Crown and officials,— and thereby to enhance respect for the law and to promote the good government of New Zealand:
(b) to provide for proper access by each person to official information relating to that person:
(c) to protect official information to the extent consistent with the public interest and the preservation of personal privacy.

29. Similarly, the corresponding Australian legislation is also helpful and reads:
Objects- general

(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.

(2) The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a) increasing public participation in Government processes, with a view to promoting better informed decision making;

(b) increasing scrutiny, discussion, comment and review of the Government’s activities.

(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

23. We submit that the objects of the legislation be enlarged to include the matters as per the New Zealand and Australian FOI legislations.

Requests for access to information

24. Under Cl 6 (1) requests for official information are to be made to the Accountability and Transparency Commission (ATC) which will decide (Cl 7) whether such requests are to be granted or refused.

25. Cl 6 (2) limits the information that can be requested confining it to that which:
(a) directly affects the person making the application, and
(b) comes into existence upon or after the commencement of the Act

26. I have already elaborated on the absurdity of the first limitation. The second limitation is equally preposterous in that it restricts information that can be accessed to that which comes into existence on or after the commencement of the Act.

27. This can mean that one is even precluded from accessing information that directly affects him or her if the date of the information precedes the legislation. How ridiculous!

28. What precisely is the purpose of this clause? Has it been deliberately inserted to block access to information which the government does not want disclosed because it may expose corrupt practices that prevailed following the military coup of 2006?

29. The plain truth about this proposed legislation is that the people will only get to know what the government wants them to know.

30. We submit that both of these limitations be removed by deleting Cl 6(2)(a) and (b). In relation to (b) we say that all information in possession of the State agencies should be made accessible, including that the origin of which precedes the date of the coming into force of this proposed legislation.

31. We submit that members of the public must be permitted to directly request information from the relevant public agency/ies. The proposal that the ATC is to decide within 10 days whether the requested information is to be made available or otherwise is firstly a further restriction on the right of the public to readily access information held by the State and its agencies.

32. Secondly, it removes the accountability requirements of public officials themselves with respect to requests for such information.

33. It is unclear why the ATC has been assigned such an administrative function which can and has been shown to be easily managed by the relevant government agencies in countries like Australia, New Zealand and England. The public must have the right to access information directly from the concerned public entity and not be subjected to numerous administrative prescriptions as proposed under the Bill.

34. The request for information should be directly to the Minister or public official or department which has such information in its possession. The ATC is envisaged to be an independent body under s121 of the 2013 Constitution whose primary duty is to investigate complaints against permanent secretaries and all persons holding high public office.

35. We note that Cl 6(3) (a) provides for regulations to be made prescribing the official format for requests for information. These have yet to be published. In the event, a request cannot be made unless the regulations are first published. We are faced here with a situation akin to putting the cart before the horse.

36. Moreover, for the moment appointments to the ATC have not been made. It is, therefore, plain silly to confer administrative functions and responsibilities on the Commission on which the 2013 Constitution has conferred quasi judicial powers. For this reason it is not proper to assign it administrative functions which may not be in concert with its primary role.

37. In this regard, it is a matter of some concern that the effective date of the proposed legislation could be delayed unduly because the regulations may not be published in good time. This is fair comment noting the apparent reluctance of the government to enact this and the Code of Conduct legislations.

38. Cl 7-11 deal with processes and timeframes which apply following the receipt of a request for information and until such time as it is disposed of by the ATC and/ or relevant government agency.

39. There is a span of between 30 to 50 days from the time a request is received, accepted and forwarded to the relevant government agency for action.

40. Cls 12-19 deal with facilitation requests. Cl 12(1)(c) provides for information to be released within 20 days once a request is accepted.

41. Cl 12(1)(a) calls for effective and timely assistance to approved requests. It is to be noted that under the Bill it may take between 30-50 days before a request is referred to the relevant government agency for actioning. Adding a further 20 working days to provide the information would extend it to between 58-78 days which is overly long.

42. We propose that the information requested be provided within 15 working days from the day on which a request is received. We further say that the requests be made directly to the concerned agency rather than via the ATC.

43. Cl 12(2)-(4) provides for charges to be paid for such information requests. Such fees should be minimal so as not to deter the flow of information to those who seek to access it.

Forms of Access

44. Cl 13(2)(a–c) (3)–(4) should be deleted as it runs contrary to the norms of accountability and transparency given that it seeks to unfairly protect the interests of the State rather than serve the purpose for which the legislation is intended.

45. Cl 18 – the 90 day extension of time to provide requested information is unreasonable and will derogate from the objects of the proposed legislation. It should be halved to 45 days.

46. Cl 19 deals with refusal of requests on account of the requested information not being able to be located. This is unacceptable given that there are/ were adequate measures in place for storing information by public agencies. This could also be used as an excuse by the State to deny requests for information which may be considered embarrassing to it or to the agency concerned.

47. Cl 21 provides for exemption to be given to listed public agencies. This clause should be removed as it is open to abuse and can be used to prevent exposure of corrupt and improper practices by a State agency or holders of public office. It is our submission that exemptions should only apply to documents which are categorized in Cl 20 and there should be no blanket exemption cover for State agencies.

Part 4: Providing access to information

48. This part of the Bill deals with promoting access to information. It is rather cynical given the restrictive definition of information, the manner in which information requests are to be made and the prescribed exemptions of certain State agencies. We believe that information listed under Cl 35 should be published on the website of the relevant public agency within 3 months from the date of coming into force of the Information Act (which we believe should be named the Freedom of Information Act) or be made otherwise available to the public free of charge.

49. Cl 20 relates to exemption from disclosure. It is our submission that subclauses (f) and (o) be deleted and that classified Cabinet documents aged 25 years and over be made accessible.

Part 5 – Accountability and Transparency Commission

50. Part 5 of the Bill relates to the ATC. We repeat our earlier submissions with respect to our objections on the role of the ATC under the Bill. We further say that the Bill should be appropriately amended so as to substitute an Information Commissioner for the ATC and for such Information Commissioner to be empowered to ensure that State and public agencies comply with requests for information held by them.

Such an appointee should be independent of State agencies and should assume all functions of the ATC as proposed under the Bill except that requests for access to information would be made directly to the concerned agency.

51. The Information Commissioner should be empowered to receive and determine any appeals arising out of a refusal to provide a member of the public with the requested information.

52. It may be appropriate to finish these submissions by quoting Atifete Jahjaga, a Kosovar politician who served as the fourth President of Kosovo:
“Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation.”

Conclusion

53. To recap then: We submit that, for the reasons stated in our submission, this Bill (34 of 2016) be withdrawn and substituted by a Bill that will meet the requirements of the Constitution and conform to internationally acceptable standards for Freedom of information legislation.

54. The new Bill must provide for:

• Public access to any information held by the State or its agencies – the only caveats being where the release of such information may impair public or national interest or threaten national security

• Requests for information to be made available speedily

• Appeals against refusal by the State agencies to release information to be determined by an independent Tribunal whose decision would be binding on the parties.