«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Process Any citizen may make a request for information, in the prescribed form, supplying the "necessary particulars" and paying any fee levied.245 Public bodies are required to assist individuals submitting requests under the Ordinance.246 In particular, public bodies must appoint specific officers to be responsible for handling requests, and for promoting openness generally. Interestingly, the Ordinance provides that where such 242 See, for example, subsection 13(2)(d), which provides for non-disclosure of records not covered by section 7.
243 Subsection 1(2).
244 Subsection 2(h).
245 Subsection 12(1).
246 Section 9.
officials have not been appointed, or where they are not available for any reason, the head of the public body must discharge this function.247 Requests must be processed within 21 days and notice must be provided of any refusal to disclose. Where information is provided, it must be accompanied by a signed and dated certificate of authenticity.
This unique provision is likely to enhance responsibility for inadequate or mistaken disclosures. Disclosure may be refused where the application is not in the proper form, the record has not be properly described, the applicant is "not entitled to receive such information", the information is not public information as defined by the Ordinance, or the information is excluded or exempt.248 It is not clear why any particular applicant would not be entitled to receive information which was otherwise subject to disclosure.
The Ordinance does not specify how fees are to be determined or the form in which disclosure shall be made. Instead, section 25 gives the government the power to make rules for the implementation of the Ordinance, including specifically in relation to fees and the form of disclosure. The same section also refers to the power to stipulate the form for requests for information.
Duty to Publish The Ordinance contains only a very limited obligation to publish, covering acts and subordinate legislation, as well as other rules having the force of law. These must be published and made available at, "a reasonable price at an adequate number of outlets" to promote easy, inexpensive access.
Exceptions The Ordinance contains two types of exception, namely exclusions and exemptions. The exclusions do not incorporate a harm test and effectively exclude information from the ambit of the law altogether while exemptions do include a harm test which must be applied on a caseby-case basis to information whose disclosure is sought. The Ordinance does not contain a public interest override. This exceptions regime seriously fails to meet international standards in this area.
Section 8 provides that the definition of public record shall not apply
to the following types of information:
247 Section 10.
248 Section 13.
Freedom of Information: A Comparative Legal Survey
These blanket exclusions do not incorporate a harm test and are not subject to a public interest override.
Sections 14 to 18 set out the exemptions from disclosure. Section 14 provides simply that there is no duty to disclose exempt information but does not prohibit such disclosure. As such, the Ordinance is not itself a form of secrecy law. All of these exemptions have harm tests, in many cases requiring significant harm to the protected interest before the information may be withheld. In this respect they differ significantly from the exclusions in section 8.
Section 15 exempts information the disclosure of which would be likely to cause "grave and significant" damage to Pakistan's interests in international relations, defined as relations with either another State or with an organisation with only States as members. Section 16 exempts information where disclosure would be likely to result in the commission of an offence, harm the detection, prevention or investigation in a particular case, reveal the identity of a confidential source, facilitate an escape from legal custody or harm the security of any building or system. Section 17 exempts information which would involve an invasion of the privacy of a third party. Finally, section 18 exempts information where disclosure would be likely to harm the economic interests of the State or a public body. This is defined as including "grave and significant" damage to the economy as the result of the premature disclosure of a tax or other instrument of economic management, or significant damage to the financial interests or activities of the public body.
The law also excludes from request-driven disclosure any document which has been published in the official Gazette or in book form and which is on sale.249 Appeals Requesters have 30 days after being refused information to appeal this refusal to the head of the public body concerned and, upon failing to get the information from him or her "within the prescribed time" (this is not actually defined in the Ordinance), from there to the Mohtasib (ombudsman) or, in cases involving the Revenue Division, to the Federal Tax Ombudsman. These officials may either direct the public body to release the information or reject the complaint.250 If the Mohtasib, but apparently not the Federal Tax Ombudsman, finds a complaint to be "malicious, frivolous or vexatious", he or she may dismiss the complaint and fine the complainant up to Rps. 10,000 (approximately US$1100). This could be a serious disincentive to potential complainants who are not sure of the likelihood of success of their complaint.251 Promotional Measures The law includes an interpretation clause, which requires interpretation to, "advance the purposes of this Ordinance", and to, "facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information".252 These are useful interpretive guidelines which, if applied, will advance the goal of openness.
The Ordinance also requires public bodies to ensure that their records are properly maintained.253 This is an important provision in a country like Pakistan, where poor record maintenance is one of the more serious obstacles to openness.254 It further requires public bodies to endeavour, within reason, to ensure that all public records are computerised and connected through a national network to facilitate authorised access.255 249 Subsection 12(2).
250 Subsection 19(1).
251 Section 20.
252 Subsection 3(2).
253 Section 4.
254 See ARTICLE 19, Centre for Policy Alternatives, Commonwealth Human Rights Initiative and Human Rights Commission of Pakistan, Global Trends on the Right to Information: A Survey of South Asia (London: 2001), under 3.5 Record-Keeping, pp. 103-4.
255 Section 6.
Freedom of Information: A Comparative Legal Survey
Individuals who destroy a record which is the subject of a request or complaint with the intention of preventing its disclosure are deemed to have committed an offence under the Ordinance, subject to a fine, imprisonment for up to two years, or both.256 On the other hand, individuals are protected against legal suit for anything done pursuant to the Ordinance in good faith.257 This protects those who disclose in good faith, even if mistakenly, while punishing those who refuse to disclose, both important provisions to help effect a change in the culture of secrecy.
Section 23 states that the Ordinance is in addition to, and shall not derogate from, other laws. Although this is not stated explicitly, it may be assumed that this applies to other laws providing for disclosure, rather than secrecy laws, since section 3 provides that other laws shall not be grounds for refusing to withhold information.
256 Section 21.
257 Section 22.
South Africa Introduction South Africa has one of the most progressive freedom of information laws in the world, no doubt a reflection of the profound mistrust the apartheid era instilled in people regarding government. The 1996 Constitution of the Republic of South Africa not only guarantees the right to access information held by the State, but also to information held by private bodies which is necessary for the exercise or protection of any right.258 The Constitution also requires the government to pass a law giving effect to this right within three years of its coming into force.259 The enabling legislation, the Promotion of Access to Information Act, came into effect in March 2001.260 As noted, the South African Act applies to both public and private bodies. The description below describes primarily the Act as it applies to public bodies; there is a parallel, and largely overlapping, part of the Act dealing with private bodies.
The Right of Access Definitions A record of a public or private body is defined in section 1 simply as any recorded information, regardless of form or medium, which is in the possession of that body, whether or not it was created by that body. The Act applies to such records regardless of when they came into existence and records are deemed to be records of a body if they are under its possession or control.261 This simple definition encompasses all information held in any form by a public or private body, giving effect to the principle of maximum disclosure. However, records requested for use in civil or criminal cases after they have been commenced and for which access is provided in other legislation are excluded from the ambit of the Act.
A public body is defined as a department of state or administration in the national, provincial or municipal spheres and any other institution exercising a power in terms of the Constitution or a provincial constitution, or exercising a public power or performing a public function 258 Act No. 108 of 1996, Section 32.
259 Article 32(2) and Schedule 6, item 23 of the 1996 Constitution.
260 Act No. 2, 2000. Available at: http://www.gov.za/gazette/acts/2000/a2-00.pdf.
261 Section 3.
Freedom of Information: A Comparative Legal Survey in terms of any legislation. This would not appear to include private bodies which are substantially publicly funded in the absence of legislation. The Act also does not apply to Cabinet or its committees, the judicial functions of courts and judicial officers of those courts, or an individual member of Parliament.262 The Act defines a private body as a natural person who carries on any trade, business or profession, but only in that capacity, as well as juristic persons. It thus excludes private non-commercial activities of natural persons.
Process A requester must be given access to a record if he or she complies with the procedural requirements set out in the Act and the record is not covered by an exception, regardless of his or her reasons for wishing to access the record.263 To facilitate access, every public body is required to appoint an information officer and as many deputy information officers as are required to "render the public body as accessible as reasonably possible".264 Requests must be made to the information officer, in the prescribed form, and must, at a minimum, identify the records requested and the requester, and specify the form and language in which access is sought. Where a requester is unable to submit a written request, her or she may make an oral request and the information officer is obliged to reduce it to writing and provide the requester with a copy.265 The Act requires information officers to provide "such reasonable assistance, free of charge, as is necessary to enable" requesters to make requests. A request may not be rejected without first offering the requester this assistance.266 Section 21 stipulates that information officers are also required to take steps that are reasonably necessary to preserve any record which is the subject of a request, until that request has been finally determined.
A decision must be made on a request as soon as possible, and in any event within 30 days, and the requester must be notified of this. This 262 Section 12.
263 Section 11.
264 Section 17.
265 Section 18.
266 Section 19.
period may be extended for a further 30 days where the request is for a large number of records and to comply within 30 days would unreasonable interfere with the activities of the body, where a search must be conducted in a different city or where inter-agency consultation is required that cannot reasonably be completed within the original 30 days.
In this case, the requester must be notified of this fact.267 Pursuant to section 27, failure to give notice within the prescribed time is a deemed refusal of access. Interestingly, for the first year of operation of the Act, the period for deciding on requests is 90 days and for the second year, 60 days.268 Where the request is granted, the notice shall stipulate that fact, the fees to be charged, the form in which access will be given and the right to appeal the fee. Where the request is refused, in whole or in part, the notice must include adequate reasons for the denial, along with the provision of the Act relied upon, as well as the right to appeal this decision.269 The Act contains detailed provisions on the transfer of requests, which is allowed whenever the record in question is not in the possession of the body where the request has been filed or the record is more closely connected with another body. Such transfers must be made as soon as possible, and in any event within 14 days. This period is not additional to the time limit for responding to requests. The requester must be informed about the transfer.270 Section 23 provides for situations in which a record does not exist or cannot be found, in which case the requester must be notified of that fact, as well as of the steps taken to attempt to locate the record. This notification is deemed to be a refusal to grant access for purposes of appeal.
Requesters may be charged fees for requests, both for reproduction of the record and for search and preparation. Where these fees are likely to be above a predetermined limit, the requester may be asked to make an advance deposit. The Act specifically provides for the minister to exempt any person from paying the fees, to set limits on fees, to determine the manner in which fees are to be calculated, to exempt certain categories of records from the fee and to determine that where the cost of collecting the fee exceeds the value of the fee, it shall be waived.271 267 Section 26.
268 Section 87.
269 Section 25.
270 Section 20.