Clauses in the draft RTI Bill that need to be changed or improved for a workable RTI Bill

The National Assembly website in an obscure corner for quite some time now has played host to the last version of the RTI Bill (presented in the previous session) asking for feedback on the Bill.
However, the National Assembly’s legislative committee to its credit and lead by MP Lekey Dorji has had a wide round of consultations on the Bill since the last session with various stakeholders.
According to sources the latest version of RTI Bill is still in the process of being amended and finalized before it can be made public on January 30th, 2014 and would be an improvement on the current version.
The comments here are, therefore, with respect to the RTI Bill on the website and how it can be improved to strengthen transparency, good governance and democracy in Bhutan.
The biggest areas of concern with the RTI Bill is exemption of various information, the MoIC being the appellate authority, long time extensions for giving information and reasons needed to give information.

Keeping out information
The key problem with the RTI bill is a list of crucial information that is exempt. This can be used by agencies and officials to deny most if not all information applied for under RTI.
Under the Chapter “Limited Conditions for denial,” there are two cases in which information can be denied.
Section 31 says, “Notwithstanding section 5 of this Act, a public authority may deny or limit a request for official information under this Act, if compliance with the request would substantially and unreasonably divert the resources of the public authority from its other operations, compliance would substantially and unreasonably interfere with the performance of the lawful functions of an official of the Government and if the head of public authority has personally attested to this fact.”
Since ‘substantial’ is not defined here an official under even a minor pretext could deny information. The solution here would be to provide the information in a more convenient form like software if the volume asked for is large.
The Bill under Chapter 5 called ‘Exempt Official Information’ has 14 categories of information that are exempt from disclosure on issues like security, sovereignty etc which are mainly acceptable.
However, there are a few killer clauses here that are not necessary and can kill the Bill.
Here Section 44 (4) says, “a public authority may refuse to disclose the requested information if, the disclosure of information is received in regard to the affairs of the State or in discharge of official duties.”
This definition if read like this would virtually exempt all official information and kill the RTI Bill at birth. This clause was copied from the Constitution.
The clause if read in the Constitution actually means that while citizens have RTI as a fundamental right it cannot be used to overrule the state on matters of security, sovereignty etc. The other 13 exemptions more then cover this and moreover the presence of an RTI Bill in fact details out RTI both as a constitutional fundamental right and the constitutional restrictions on it.   Section 43 (5) says “A public authority may refuse to disclose the requested information if: disclosure of the information would undermine the free and frank provision of advice within government.”
This section would exclude all deliberative information, which is one of the most important categories of information that needs to be made public and will make implementation of RTI difficult.  The section needs to be removed.
Another problem is section 43 (8) which says, “A public authority may refuse to disclose the requested information if: the information has been received in confidence from a foreign government or any organization on the understanding that it would be treated as confidential and disclosure of which would constitute a breach of confidence;
The phrase “or any organization” can be misused.  There are also no restrictions on what type of information can be treated as confidential. This will lead to many organizations within and outside the government classifying much of their information as confidential, and thereby defeating the very purpose of an RTI law. Therefore, this restriction should be only for foreign governments and that too on credible grounds.
Section 43(9) says that even trade secrets and intellectual property should be kept out of RTI. This clause could be counterproductive as a lot of Intellectual properties are already in the public domain being used by the public without violating any laws.

MoIC as the appellate authority
In what will create a conflict of interest the Act under section 6 outlines the Ministry of Information and Communications as being both in charge of overseeing the implementations and also as the Appellate authority.
This would mean that if information was denied to someone they could then go to the MoIC to seek justice before finally going to court.
An earlier version of the RTI Bill said that in case information was not shared appeals would be going to an impartial National Tribunal which would implement the RTI Act. This would have been in line with international best practices.
The MoIC itself is a public agency from where people would be seeking information. For example the Act does not address what would happen if the same bureaucrats in the MoIC denied the information?
Bhutan to implement the RTI in an effective manner needs to have an autonomous or semi-constitutional National Tribunal or Central Information Commission composed of neutral, autonomous and independent people. The National Tribunal of Information Commission in most countries is given the powers of a court in order to collect and secure evidence, examine and ensure the presence of concerned persons, and ensure that its directions are followed. Such powers which are necessary would conflict with the role of MoIC as a Ministry.
MoIC could play a role in terms of facilitation as a government agency.

Reasons to ask information
Section 22 says that that a person making a request for information shall be required to state a reason for the request except in the case of a disabled person.
It gets even tighter with section 23 which says that information provided under this Act shall only be used for the purpose for which it was initially requested.
There is also a penal provision for information seekers in section 24 which says, “Misuse of the information provided by a public authority shall constitute violation of this Act and the person who has requested the information or is in possession of the information, shall be punishable under relevant laws.”
An earlier version of RTI did not have any provision whereby people needed to give reasons and in fact it said that no reason needs to be given.

Indefinite time extensions
As per the RTI Bill ordinarily once and RTI application is filed it should be given within 14 days and in case the information is voluminous then an extension of 30 days is given.
However, section 37 of the Bill titled ‘Extraordinary time extension’ says that “Notwithstanding the time extension granted under section 34 of this Act, the head of the public authority involved may further extend the time period.”
Such a clause could mean that information can be delayed forever.
However, in the case of those seeking information only short time periods are given to file appeals. This would be difficult given that even seasoned lawyers take time to file appeals. It also prescribes thirty days for appeal to local courts/MoIC and ten days to the High Court.

No penalties
Section 12 shows 15 categories of information that should be proactively made public. However, there is no provision for fixing of responsibility or imposition of penalty for non-compliance. There are also no penalties in undue delay in providing information and there should be clause imposing daily fines for not acceding to the Information Commission’s request.
The experience of other countries has shown that, without such provisions, compliance with requirements of proactive disclosure remains very weak.

Who is the Public Authority ?
The RTI Bill under section 10 talks of a public authority t.
However, it is not elaborated who is individually responsible in the public authority. Section 8 talks of nominating competent Information & Media Officer(s) to provide information to persons requesting information under this Act.
Here the IMOs have to be established bureaucrats otherwise they may be ignored like in other countries and IMOs should get refusals to share information in writing from senior officers so that the senior officers denying information should also be held accountable and not only the IMO. The secretary should also be held accountable for the organization not sharing information.

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