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

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justifi ed in its original decision. The Tribunal may make any decision which might have been made on the
original application, but it may not nullify a certifi cate that a document is exempt. The Tribunal may inspect
any document claimed to be exempt, provided that, in doing so, it ensures that the public does not thereby
gain access to the document (section 32). The Act is silent as to any other powers the Tribunal might have
and to the manner in which hearings are to be conducted. These matters are, however, addressed in the
Access to Information (Appeal Tribunal) Rules, 2004, which grant a right to parties to be heard and provide
for the Tribunal to compel witnesses.
The Second Schedule of the Act provides for the appointment of fi ve members of the Appeals Tribunal, one
of whom shall be the chair, by the Governor-General after consultation with the Prime Minister and Leader
of the Opposition. Members hold offi ce for fi ve years and are not eligible for reappointment. A member may
resign in writing at any time or be removed by the Governor-General, after consultation with the Prime
Minister and Leader of the Opposition, for being of unsound mind or unable to perform his or her functions;
for becoming a bankrupt; upon being sentenced to death or imprisonment; for conviction for any crime
of dishonesty; or for failing to carry out his or her functions under the Act. Remuneration of members is
determined by the minister responsible for the public service.
The rules relating to members described above do provide important protection for the independence of the
Tribunal. At the same time, these could be further improved, for example by providing for the non-eligibility
for appointment of those with strong political connections. According to some reports, the Tribunal lacks
the staff required to do its job effectively. 192
Sanctions and Protections
Section 33(2) provides that no action in defamation, or for breach of confi dence or of copyright, shall lie
against any offi cer of a public body or the author of a document where access is granted in the bona fi de
belief that this is required by the Act. At the same time, neither the Act nor a grant of access may be
construed as authorising the commission of these wrongs, including by publication of the document by the
person granted access (sections 33(1) and (3)). The Act further provides that a grant of access in accordance
with the Act shall not, of itself, constitute a criminal offence but that the Offi cial Secrets Act, which does
make it a crime to disclose certain information, shall apply to the disclosure of information in breach of the
Access to Information Act (section 35). The Act thus provides some protection to those making good faith
disclosures but they do not appear to be protected against making mistakes which result in breaches of
the Offi cial Secrets Act. This is unfortunate as it may lead to offi cials being unduly cautious in relation to
information disclosure. No protection is provided in the Act for whistleblowers.
Section 34 of the Act makes it a criminal offence to alter, deface, block, erase, destroy or conceal a
document to which the Act confers a right of access (that is, a non-exempt offi cial document), with the
intention of preventing disclosure.
Promotional Measures
The Act contains few promotional measures. Regulations 3 and following provide for the appointment of
‘responsible offi cers’ with a mandate to process requests, to maintain knowledge of the Act and other
relevant rules, to coordinate the proactive publication of information and generally to ensure proper
implementation of the Act.
The Act also provides for its review ‘from time to time’ by a committee of both Houses of Parliament and
for the fi rst such review to take place not later than two years after its comes into force (section 38). A Joint
Select Committee on Access to Information was accordingly set up in December 2005, and began hearings
in January 2006. The Committee completed its hearings in March 2006 but, before its report was fi nalised,
the government fell and the future status of the report remains unclear.