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

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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. 117
118 Sanctions and Protections The Ugandan RTI Law contains strong provisions on both sanctions and protections. Pursuant to section 46, anyone who, with intent to deny access, destroys, damages, alters, conceals or falsifi es a record commits an offence punishable by up to 240 ‘currency points’ (the Schedule sets a currency point at 20,000 Ugandan Shillings or approximately USD11.50) and/or imprisonment for up to three years. On the other hand, no public offi cer shall be subject to any civil or criminal liability for any act done in good faith in the exercise or performance of any power or duty under the RTI Law (section 45). Offi cers are thus protected for disclosing information as long as they act in good faith. As noted, this would protect both the disclosure of information as well as the withholding of it, on the basis that this was required by the RTI Law, given that it is both a secrecy and access law. Section 44 of the RTI Law provides protection against legal, administrative or employment-related sanction for whistleblowers – those who release information on wrongdoing or a serious threat to health, safety or the environment – as long as they acted in good faith and in the reasonable belief that the information was true and disclosed evidence of wrongdoing. For the purposes of that section, wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or maladministration. This is signifi cant because very few right to information laws include protection for whistleblowers, although a growing number of countries have separate legislation on this. 282 Promotional Measures The Ugandan RTI Law has very little in the way of promotional measures. Section 10 provides that the chief executive of each public body is responsible for ensuring that its records are accessible. This is consistent with the defi nition of information offi cer who, pursuant to section 4, is the chief executive. Throughout the Law, as noted in this chapter, the information offi cer bears primary responsibility for the implementation of most of the obligations placed on public bodies. Identifying this position with the leading management fi gure should at least have the effect of ensuring that these responsibilities are taken seriously within public bodies. Pursuant to section 43, each minister shall submit an annual report to Parliament regarding those public bodies for which he or she is responsible, describing the requests for information made to those public bodies, whether or not access was given and, if not, the reasons. Reporting of this sort is common in right to information laws, but many such laws provide for more detailed and extensive reporting obligations than the Ugandan RTI Law. The Ugandan RTI Law does not include a number of other promotional measures found in many right to information laws, such as an obligation to produce a guide for the public on how to request information, a system to promote effi cient record management or an obligation to train offi cers on information disclosure. The Law also fails to identify a specifi c locus of responsibility within government for promoting the proper implementation of the Law, which may lead to this important matter effectively falling between the cracks, as it were.
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Toby Mendel is the Law Programme Di
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The author is responsible for the c
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Table of Contents Foreword and Note
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Country Chapters 43 Azerbaijan 43 I
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Foreword by Abdul Waheed Khan Assis
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Introduction The importance of the
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Access to medical records, for exam
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International Standards and Trends
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egard to information held by Govern
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very exercise of democracy.” The
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Group to discuss the right to infor
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y Article 8 of the Convention. 70 I
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information on hazardous materials
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The Guerra case at the European Cou
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Court of Japan established in two h
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Charter standards and gradually ame
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43. Report of the 65th Meeting of t
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105. See, for example, Handyside v.
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Features of a Right to Information
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principles of law recognised by the
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PRINCIPLE 2. OBLIGATION TO PUBLISH
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The complexity and yet importance o
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provision of advice within governme
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The Aarhus Convention has reasonabl
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Notes 137. UN General Assembly Reso
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44 The Right of Access The right of
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46 Access to information shall be f
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48 information the disclosure of w
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50 have been taken to disseminate i
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52 funded from the consolidated bud
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54 Article 5 provides that the righ
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56 The initial indications are that
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58 Duty to Publish The Indian RTI L
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60 personal information which does
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62 Section 4(1)(a) provides for a r
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64 A public body (the term used in
Page 75 and 76: 66 ‘subject area’ of the public
Page 77 and 78: 68 justifi ed in its original decis
Page 79 and 80: 70 The Right of Access The right of
Page 81 and 82: 72 Exceptions The Japanese RTI Law
Page 83 and 84: 74 Sanctions and Protections The Ja
Page 85 and 86: 76 formats or of certain types, suc
Page 87 and 88: 78 Article 20 provides a long list
Page 89 and 90: 80 Sanctions and Protections Articl
Page 91 and 92: 82 source, date of creation or form
Page 93 and 94: 84 Duty to Publish Article 7 of the
Page 95 and 96: 86 Appeals For agencies, complaints
Page 97 and 98: 88 Peru Introduction The 1993 Peruv
Page 99 and 100: 90 automatically from a database, w
Page 101 and 102: 92 information classifi ed on grou
Page 103 and 104: 94 S outh Africa Introduction The 1
Page 105 and 106: 96 The Law contains detailed provis
Page 107 and 108: 98 The main exceptions are set out
Page 109 and 110: 100 an applicant a fee for inspecti
Page 111 and 112: 102 Chapter 2 of the Swedish Law de
Page 113 and 114: 104 where this “presents serious
Page 115 and 116: 106 Appeals An individual may appea
Page 117 and 118: 108 for providing the information (
Page 119 and 120: 110 In terms of specifi c exception
Page 121 and 122: 112 parliament to make laws prescri
Page 123 and 124: 114 required to grant earlier acces
Page 125: 116 Most of the exceptions do inclu
Page 129 and 130: 120 The Law does not include a sect
Page 131 and 132: 122 There have been efforts recentl
Page 133 and 134: 124 The specifi c exceptions are as
Page 135 and 136: 126 Sanctions and Protections The R
Page 137 and 138: 128 The new OPEN Government Act add
Page 139 and 140: 130 educational or scientifi c inst
Page 141 and 142: 132 The sixth exception covers fi l
Page 143 and 144: 134 the number of full-time staff
Page 145 and 146: 136 196. It was amended by Law No.
Page 147 and 148: 138 259. Act No. 100 of 1980. Avail
Page 149 and 150: 140 318. Banisar, D., Government Se
Page 151 and 152: 142 Some laws also include a number
Page 153 and 154: 144 of parliament. These are unfort
Page 155 and 156: 146 is a complex one. In some count
Page 157 and 158: 148 Exceptions Most laws include a
Page 159 and 160: 150 public interests. A number of l
Page 161 and 162: 152 the set time frame, a refusal t
Page 163 and 164: 154 must make each such report avai
Page 165: 156 from different regions around t
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