Freedom of Information: A Comparative Legal Survey - Federation of ...

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required to grant earlier access to the record only if there are “reasonable grounds for believing that the
person will suffer substantial prejudice” from the proposed delay.
Many right to information laws provide for delays in these or analogous cases. The problem with these
provisions is the absence of hard timelines. A law may, for example, require publication of certain material
but give no particular deadline for this, or a deadline of two years hence. A document may be prepared
for submission to a public body in the distant future, or it may never actually be submitted, in which case
section 15 would allow indefi nite delay. The possibility of overcoming the delay is helpful, but the standard
– substantial prejudice – is high and, given that access is a right, does not suffi ce to negate the underlying
problem of an absence of deadlines.
Section 13 provides for the transfer of requests where the information is not held by the public body
originally approached or where the subject matter of the information is more closely connected to the
work of another public body. Such transfer should be effected as soon as possible but in any case within 21
days and, in this case, the applicant should be informed of the fact of the transfer, the reasons for it and the
period within which the request will be dealt with. These provisions are analogous to those found in other
right to information laws, although the period given to effect a transfer, 21 days, is the same as to process
a request, which seems unduly long for this relatively simple matter.
Pursuant to section 35, where an information offi cer intends to disclose a record he or she must, within
21 days, inform a third party in writing where the record might contain a trade secret of that third party,
confi dential fi nancial, commercial, scientifi c or technical information supplied by that third party, or
information the disclosure of which could result in a commercial loss to that third party. In this case, the
third party shall have 20 days to make a representation as to why the information should not be disclosed
and the information offi cer shall, within another 21 days, decide whether or not to release the record
(section 36(1)). This sort of provision is common in a right to information law, save for the timelines, which
are unduly long and do not conform to the time requirements set out in sections 16 and 17 (since the
various periods listed in this section run to over 60 days).
Where a decision has been made to grant a request, notice shall be provided indicating any fee to be
paid, the form in which access is proposed to be given and the right of the applicant to appeal against the
proposed fee or form of access, as well as the procedure for making such an appeal (section 16(2)). Where
a request is refused, the notice shall state adequate reasons for the refusal, including the provisions in the
RTI Law upon which it is based, the right of the applicant to appeal against the refusal, and the procedure
for doing so (section 16(3)). Where access to part of a record is granted and part refused, notice should be
provided in accordance with the above for the respective parts of that record (section 19(2)).
The RTI Law includes very detailed provisions on the form of access. Section 20(2) provides a long list of
possible forms of access, which include a copy of a record (including in electronic form where relevant),
inspection of the record (including via sound equipment), the extraction of information from the record
using equipment available to the public body and even for the applicant to make copies of a record him- or
herself, subject to certain conditions. Access should normally be provided in the form requested, unless
this would unreasonably interfere with the work of the public body, be detrimental to the preservation of
the record or breach a copyright not held by the State. Where access is, for one of these reasons, provided
in a form other than that requested, the fee shall not exceed that which might have been levied had the
information been provided in the form requested. The Law also includes detailed provisions on access by
persons with disabilities, to whom access should be provided in an appropriate form, unless this would be
‘outrageously expensive’. Fees are, in analogous fashion, capped at the level they would have been had the
person not had the disability.
The RTI Law includes only very framework rules on fees. Section 20(1) provides that access should be
granted as soon as any fee is paid. No other mention is made of fees in the Law itself, other than to grant
the minister responsible for the Law the power to make regulations regarding “any matter relating to
the fees including the procedures and guidelines for determining when such fees should be waived or
reduced”. Such fees must, however, represent only the actual cost of retrieval and reproduction of the
information (section 47(1)(b) and (2)). This system has its strengths and weaknesses. It does at least ensure
that there is a central set of fee rules, ensuring consistency across public bodies on this important matter,
along with, presumably, fee waivers or reductions. On the other hand, inclusion of retrieval costs has the