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

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Commissioners hold offi ce for fi ve years, non-renewable, and may not hold offi ce after they reach the age of 65. Commissioners must swear the oath set out in the First Schedule, which affi rms allegiance to the Constitution, to uphold the sovereignty and integrity of India, and to perform duties to the best of one’s ability, without “fear or favour, affection or ill-will”. The salaries of Commissioners are linked to those of their counterparts at the Election Commission, less any government pension they may be receiving (section 13). This last seems rather unfair as it would disadvantage those on government pensions compared to those who might be receiving other pensions. Section 14 addresses the question of removal of Commissioners from offi ce. This may be effected by order of the President upon a decision of the Supreme Court that the Commissioner in question has been shown to have engaged in misbehaviour, including by profi ting from his or her offi ce, or to suffer from incapacity. A Commissioner may be suspended by the President while the Supreme Court reference is being decided. The President may also, by order, remove a Commissioner who: has been adjudged an insolvent; has been convicted of an offence which, in the opinion of the President, involves moral turpitude; engages in paid employment; is, in the opinion of the President, unfi t to continue in offi ce by reason of infi rmity of body or mind; or has acquired fi nancial or other interests which are likely prejudicially to affect his or her functions as a commissioner. Taken together, these are very strong provisions, although the grounds for removal directly by the President are broad and inconsistent with the need for a Supreme Court reference in other cases (so that only the Supreme Court may decide on incapacity whereas the President alone may remove for mental infi rmity). Section 23 of the RTI Law purports to oust the jurisdiction of the courts in respect of any order made under it. The effect of this in practice, however, is only that one may not approach a lower court for redress, since access to the High and Supreme Courts is constitutionally guaranteed and many right to information cases have already been decided by these courts. Sanctions and Protections The RTI Law includes a developed regime of sanctions. Pursuant to section 20, where an Information Commission is of the view that an information offi cer has, without reasonable cause, refused to accept a request, failed to provide information within the specifi ed timelines, denied a request in bad faith, knowingly given incorrect, incomplete or misleading information, knowingly destroyed information which was the subject of a request, or obstructed in any manner access to information, it shall impose a penalty of Rs 250/day until the information has been provided, up to a maximum of Rs. 25,000. Presumably, where the problem cannot be remedied, for example because the information has been destroyed, the maximum would apply automatically. Before imposing such a sanction, the Commission shall give the information offi cer a reasonable opportunity to be heard. The section states that the burden of proving that he or she acted ‘reasonably and diligently’ shall be on the information offi cer, although the offence only stipulates a lack of reasonable cause, and not a lack of diligence, as a constituent element. For persistent offenders, the Commission shall recommend disciplinary action. The list of wrongs outlined in this section is extremely comprehensive. On the other hand, no legal proceeding shall lie against any person for any act done or intended to be done under the Law (section 21). The Law does not provide protection for whistleblowers. 182 Promotional Measures Pursuant to section 5(1), every public body shall appoint as many information offi cers, formally known as Central or State Public Information Offi cers, as may be required to provide information to those who request it. These information offi cers may seek the assistance of any other offi cer and every such offi cer shall render all assistance to the information offi cer (section 5(5)). 61
62 Section 4(1)(a) provides for a rudimentary rule on record management, providing that all public bodies must maintain their records “duly catalogued and indexed in a manner and the form which facilitates the right to information”. Although this is useful, it would have been preferable if the Law had put in place a system to establish and implement record management standards. Those records whose nature makes them appropriate for computerisation shall be made available electronically, and shall also be connected through a nation-wide network, subject to resources. Presumably for information other than that required to be made available proactively, this network is internal to the government. Section 25 of the Law places an obligation on the respective Information Commissions to report annually to government, and these reports shall be laid before each House of Parliament or the state equivalent. Each ministry or department shall, in relation to the public bodies under their jurisdiction, provide such information to the relevant Commission as the latter may require to prepare the report. The report shall at least include the following information: the number of requests made to each public body, the number of requests that were rejected, as well as the provisions of the Law relied upon and the number of times each provision was invoked, the number of appeals to Information Commissions and their outcomes, the particulars of any disciplinary action against offi cers, the fees collected, facts which indicate an effort to implement the Law in the spirit intended, and any recommendations for reform. The Law also places an obligation on the different levels of government to produce and update as necessary an accessible guide for the public on how to use the act, in the applicable offi cial language. The guide shall include, among other things, the objects of the Law, the contact details of every information offi cer and a description of the manner and form in which a request may be made, the assistance available from information offi cers and the Commissions, remedies for any failure to implement the Law and how to lodge an appeal, the rules on proactive disclosure of information, the rules on fees, and any regulations or circulars which have been adopted to implement the Law (sections 26(2)-(4)). Finally, the Law stipulates that government may, to the extent of its resources, develop programmes to education the public on their rights under the Law and provide training to information offi cers (section 26(1)). This is a pretty comprehensive package of promotional measures. One element that is missing is that the Law fails to place central responsibility or provide for a locus of responsibility for the more general promotional measures, such as public education and training. As a result, these are currently provided for only in very general and discretionary terms. J amaica Introduction Article 22 of the 1962 Jamaican Constitution guarantees freedom of expression which is defi ned to include the right to receive and impart ideas and information. This right may be subject to restrictions provided for by law that are reasonably required to protect various public and private interests. The right to access information held by public bodies is not specifi cally guaranteed. 183 The Jamaican Access to Information Act, 2002 (the Act) 184 received Royal Assent in July 2002 and came into force in four phases, applying to some public bodies from January 2004 and thereafter to an increasing number until November 2004, when it came fully into force. 185 It had been a long time in the making. Civil
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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
Page 20 and 21: very exercise of democracy.” The
Page 22 and 23: Group to discuss the right to infor
Page 24 and 25: y Article 8 of the Convention. 70 I
Page 26 and 27: information on hazardous materials
Page 28 and 29: The Guerra case at the European Cou
Page 30 and 31: Court of Japan established in two h
Page 32 and 33: Charter standards and gradually ame
Page 34 and 35: 43. Report of the 65th Meeting of t
Page 36 and 37: 105. See, for example, Handyside v.
Page 38 and 39: Features of a Right to Information
Page 40 and 41: principles of law recognised by the
Page 42 and 43: PRINCIPLE 2. OBLIGATION TO PUBLISH
Page 44 and 45: The complexity and yet importance o
Page 46 and 47: provision of advice within governme
Page 48 and 49: The Aarhus Convention has reasonabl
Page 50: Notes 137. UN General Assembly Reso
Page 53 and 54: 44 The Right of Access The right of
Page 55 and 56: 46 Access to information shall be f
Page 57 and 58: 48 information the disclosure of w
Page 59 and 60: 50 have been taken to disseminate i
Page 61 and 62: 52 funded from the consolidated bud
Page 63 and 64: 54 Article 5 provides that the righ
Page 65 and 66: 56 The initial indications are that
Page 67 and 68: 58 Duty to Publish The Indian RTI L
Page 69: 60 personal information which does
Page 73 and 74: 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
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112 parliament to make laws prescri
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114 required to grant earlier acces
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116 Most of the exceptions do inclu
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118 Sanctions and Protections The U
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120 The Law does not include a sect
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122 There have been efforts recentl
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124 The specifi c exceptions are as
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126 Sanctions and Protections The R
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128 The new OPEN Government Act add
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130 educational or scientifi c inst
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132 The sixth exception covers fi l
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134 the number of full-time staff
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136 196. It was amended by Law No.
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138 259. Act No. 100 of 1980. Avail
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140 318. Banisar, D., Government Se
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142 Some laws also include a number
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144 of parliament. These are unfort
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146 is a complex one. In some count
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148 Exceptions Most laws include a
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150 public interests. A number of l
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152 the set time frame, a refusal t
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154 must make each such report avai
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156 from different regions around t
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