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Opinion | Nov 2, 2018

Problematic Clauses Of The RTI Bill 2018 That Must Be Deleted Or Amended

Problematic Clauses Of The RTI Bill 2018 That Must Be Deleted Or Amended

The following are outstanding issues with the RTI Bill, 2018 that the Coalition on the Right to Information, Ghana has identified as problematic and needs urgent consideration by Parliament.

1. Clause 3: Expand the list of types of information to be disclosed:

To provide the appropriate guidance on the types of information that should be disclosed proactively, the Bill should adopt the proposals of Article 7 of the AU Model Law on Access to Information in Africa. These include:

(a) manuals, policies, procedures or rules or similar instruments which have been prepared for, or are used by, officers of the body in discharging that body’s functions, exercising powers and handling complaints, making decisions or recommendations or providing advice to persons outside the body with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to or for which persons may be entitled

(b) any prescribed forms, procedures, processes and rules for engagement by members of the public with the public body or relevant private body; the particulars of any arrangement, statutory or otherwise, that exists for consultation with, or representation by, members of the public in relation to the formulation or implementation of its policies or similar documents;

(c) whether meetings of the public body or relevant private body, including its boards, councils, committees or similar other bodies, are open to members of the public and, if so, the process for direct or indirect engagement; but where a meeting is not open to the public, the body must proactively make public the contents of submissions received, the process for decision making and decisions reached;

(d) detailed information on the design and execution of any subsidy programmes implemented with public funds, including the amounts allocated and expended, the criteria for accessing the subsidy, and the beneficiaries;

(e) all contracts, licenses, permits, authorizations and public-private partnerships granted by the public body or relevant private body;

(f) reports containing the results of surveys, studies or tests, including scientific or technical reports and environmental impact assessment reports, prepared by the public body or relevant private body; and

(g) any other information that may be applicable.

  1. Clause 5: Delete clause 5, 6 and 14 (a)

Exemptions should be issue based and not organ of government specific and in this wise, all proposed exemption that are organ of government specific should be deleted. This is also in line with the established global best practice principle that in fostering good governance, transparent and accountable leadership in the country, RTI must apply to all arms of government, amongst other institutions too. Consequently, including exemptions that are organ of government, at the minimum, effectively serves to defeat this all-important philosophy of RTI {Refer to AU Model law, pages 32-37, Liberia FOI Act chapter 4; and Nigeria FOI Act, clauses 11-19}

We also propose that the exemption clauses must be simplified and the Model law on Access to Information for Africa, Indian RTI Act and Liberia Act serve as a good reference point.

  1. Clause 8 and 9: Delete ‘prejudice’ and keep ‘Damage’:

In Clauses 8 and 9 the Bill establishes very different thresholds for determining whether information is exempt in relation to international relations and defence/security. An information officer making this decision can either choose the higher threshold of information reasonably expected to cause ‘damage’ to the lower threshold of information reasonably expected to ‘prejudice’ relations or defence of the State. Certainly, if the human right to information is to be limited it must require a higher threshold, one that is necessary in a democratic society. This creates a big loophole for public institutions to deny information because it is likely to embarrass government. In some definitions prejudice and damage are used interchangeably. To make clear and specific to aid interpretation at bureaucratic level we should stick to Damage.

  1. Clause 12 should be deleted

Clause 12 states that information obtained from a tax return or gathered for the purpose of determining tax liability is exempt information. The effect of this clause is to invariable make information relating to tax administration exempt information which defeats government’s own objective on tax governance and increasing domestic resource mobilization, a major indicator in the Ghana Beyond Aid Agenda. Payment of tax is a legal obligation and must be applied in a transparent manner. It is a contradiction that this is the same State that seeks to fight tax evasion and Illicit Financial Flows. That objective is not going to be achieved by throwing a blanket over the activities of the GRA. This clause should be deleted for the genuine objective of Clause 12 is to protect personal tax information, which is already provided for in Clause 16 under Disclosure of Personal Matters which includes information likely to reveal “confidential professional, commercial or financial affairs”.

  1. Delete Clause 13:

Clause 13 states that information is exempt from disclosure which, if disclosed would reveal

a) an opinion, an advice, a report or a recommendation prepared or recorded or

b) a consultation or a deliberation held in the course of or for the purpose of making a decision in the public service or a public institution and which can reasonably be expected to frustrate or inhibit the candid and deliberative process of a public institution or between public institutions.

It goes further to state under sub clause 2 that if the information is already public as a basis of a public policy or contains statistical information then the information is not exempt.

The provisions of Clause 13 fundamentally undermine the entirety of the RTI Bill. First, the rationale for excluding such basic information is outside of the limitations that the Constitution provides. In other words, it is not ‘necessary in a democratic society’. It may be convenient for internal deliberations of public institutions to be excluded but it cannot be a basis for disabling a constitutional right to information.

The practical effect of Clause 13 is that almost all documents in the public service will become exempt information. Memos, advice, recommendations and evaluations are at the core of the propriety of decision making in public institutions. If Clause 13 is retained, it means that documents like evaluation documents of an Entity Tender Committee, the report of a technical committee to a minister to make a decision in the public interest will all be exempt information.

It has been argued that Clause 17 that provides for a Harms Test sufficiently cures the problem. It does not. The harms test is the last resort where information that is exempt under law can be disclosed because the benefits of disclosure outweigh the harm that disclosure will cause. The provisions under Clause 13 are not information that should be exempt in the first place for one to use the harms test. In addition, by making Clause 13 an exempt clause, the bill would have shifted the burden of prove from the public institution to the citizen. So applicants we have to prove that there must be disclosure because the public interest benefit outweighs the harm it may have caused if disclosed. This again is untenable. Refer to JUSTICE ANTHONY YEBOAH’S determination of the harms test in Lolan Sagoe case.

The Report of the Joint Parliamentary Committee on Constitutional, Legal and Parliamentary Affairs and Communications to the House proposes as follows:

- Amendment proposed- sub-clause (1), line 2, at the end of phrase, insert “an opinion or an advice”

  • Amendment proposed – sub-clause (1), paragraph (a) delete.

The effect of the amendment is as follows:
Information is exempt from disclosure which, if disclosed, would reveal

a) an opinion or an advice
b) a consultation or a deliberation held in the course of or for the purpose of making a decision in the public service or a public institution and which can reasonably be expected to frustrate or inhibit the candid and deliberative process of a public institution or between public institutions.

This in effect does not cure the problem.

  1. Clause 18: Now citizens must show an ID card to access information:

The Report of the Joint Committee on Constitutional, Legal and Parliamentary Affairs and Communications proposes an amendment to Clause 18 requiring citizens to show an ID when they apply for information. In this day of technology are we suggesting that people should physically throng public institutions to apply for information? It is not practicable and not progressive. Certainly, it is important for people to identify themselves and that can be done electronically. However, if the information is supposed to be provided to the general public then it is not essential to worry about the identity of the applicant in the first place. It is the same as putting it on the internet.

  1. Clause 38: Applicants are to apply to the Supreme Court when they are denied

information:
The Report of the Joint Committee on Constitutional, Legal and Parliamentary Affairs and Communications proposes that applicants should head to the Supreme Court if they are denied access to information that “will be prejudicial to the security of the state”. The proposal to invoke the original jurisdiction of the Supreme Court is erroneous in this instance. Article 33 of the 1992 Constitution is very clear that the High Court is the forum for enforcing all rights under the Constitution especially Chapter 5 rights. Article 135 has to do with the disclosure of documents during judicial proceedings when national security considerations are raised.

  1. Clause 85 and 92: Delete clause 85 and 92 and replace with a new clause dealing with

Primacy of the Act:
The current provision dealing with the primacy of the RTI law is inadequate and must be addressed to avoid unnecessary litigation. The RTI Bill seeks to elaborate on the constitutionally guaranteed right and should therefore be the reference point for all enactments dealing with the right to information. The current provision in Clause 92 subjecting all enactments to RTI law is not comprehensive. For example, it refers to all enactments providing for the disclosure of information not enactments relating to state secrets and oath that obliges non-disclosure of information. Clause 92 should also refer to enactments providing for non-disclosure of information.

  1. Clause 89:

Application to the relevant private sector should be mandatory not discretionary. The Bill struggles with extending the law to relevant private sector entities and actors. This is because it seeks to expand the conditions for extension to go beyond a private sector receiving public resources. To cure the problem, it gives the Attorney-General discretionary power to extend the law to cover private sector through a legislative instrument. Our position is this; there is no ambiguity that a private entity using public resources should be subject to the provisions of the law. So if the Bill wants to consider other conditions outside of it, it must oblige the AG within a specific time frame to do the extension.

Alhaji Alhasan Abdulai
Alhaji Alhasan Abdulai , © 2018

This author has authored 478 publications on Modern Ghana.
Author column: AlhajiAlhasanAbdulai

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