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

information the disclosure of which is likely to prejudice defence, security, sovereignty or international
relations, or reveal information supplied in confi dence by another State or international organisation,
unless the record is more than twenty years old (section 32); and
information containing advice or recommendations, or an account of a consultation or discussion,
information the disclosure of which could reasonably be expected to frustrate the deliberative
process by inhibiting the communication of an opinion, report or recommendation or the conduct of
a consultation or discussion, unless the record is more than ten years old (section 33).
Generally, these exceptions are in line with accepted standards, although a couple of points are relevant.
First, as noted, an important part of the internal deliberations exception does not require any harm – all
advice and recommendations are covered – leading to a potentially huge gap in the right of access, as with
the blanket exception for cabinet documents. Second, the Law provides a non-exclusive list of examples
of defence information. Although perhaps apparently reasonable at fi rst blush, many of these cover much
information which, in democracies, are in fact a necessary part of public scrutiny of offi cial action. To
give one example, the list includes information relating to the quality, characteristics or vulnerabilities of
weapons, whereas much public debate about this is perfectly legitimate. Thus, although the list is no doubt
an attempt to narrow the scope of the defence exception, it fails to achieve this objective.
Appeals
The Ugandan RTI Law does not provide for an appeal to an independent administrative body. This is a
distinct shortcoming and experience in other countries has proven the importance of the possibility of an
independent appeal. The Law does, however, contain relatively detailed rules on appeals to the courts.
Section 37 provides for individuals to lodge complaints with the Chief Magistrate against any refusal to
grant access, undue delay in responding to a request or a refusal to grant access in the form requested.
Pursuant to section 38, anyone aggrieved by a decision of the Chief Magistrate may, within 21 days, appeal
to the High Court. The Rules Committee 280 is required to adopt a set of rules for the processing of these
complaints (section 39). 281
Section 40 states that, in hearing a complaint, the court may, notwithstanding anything in the RTI Law or any
other law, examine any record held by a public body and no such record may be withheld on any grounds,
except where access is expressly prohibited by the RTI Law or any other law. This is somewhat confusing
and the intention of the drafters is far from clear. It may mean that courts shall have access unless a law
specifi cally denies them – as opposed to the general public – this possibility. Many best practice right to
information laws simply provide for the administrative appeals body, and the courts, to have full access to
records although of course this may be overcome by other legislation. When accessing records, the court
may not disclose any record to which access has been refused and, to achieve this, it may, among other
things, receive representations ex parte or hold hearings in camera. Pursuant to section 22, public bodies
must preserve a record until all appeal procedures relating to it have been exhausted.
In any hearing under the RTI Law, the proceedings are civil in nature, although the burden of proving that
a refusal to grant access, or any other decision under the Law, is legitimate lies with the party claiming
that it complies with the Law (section 41). Given that the Law places obligations almost exclusively on
public bodies, this burden would normally fall on them. In making a decision on a complaint under the
RTI Law, the court may, among other things, confi rm or set aside the original decision, require access to
the information requested to be granted, grant interim or specifi c relief, including compensation, order
payment of costs, or require a public body to take such other action as it deems necessary (section 42). This
is a broad set of remedial actions which empower courts to ensure proper implementation of the Law.
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