The Bhutanese Leading the way.
The RTI Bill finalized by the cabinet this Tuesday got some controversial additions that may make it more difficult to get information for those seeking information and easier for those not wanting to share it.
The cabinet also did not remove or change any of the provisions in the draft RTI Bill shared a few weeks ago that could be misused to deny information. This is despite discussions in online forums on the issue and also official feedback on ways to improve the draft RTI Bill from members of the public.
This final draft approved by the cabinet will be presented to the Parliament for approval in the upcoming session.
New Exemptions added
The original draft RTI Bill shared with the public had 10 clauses under which information need not be shared which included issues like security and privacy among others.
The cabinet has increased it by four to 14 clauses of which one is particularly controversial.
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 section could defeat the whole purpose of the RTI Act which is to make it easier for ordinary people to access information and services from various government agencies. The clause basically could be interpreted as meaning that any agency could deny official information.
The clause also does not make sense as there are numerous other provisions which exempt information that could affect security, integrity, unity, sovereignty, foreign relations, intellectual property and etc.
Other additional new grounds on which to deny information are that it disturbs peace, stability and well-being of the nation, the information is likely to incite an offence on the grounds of race, sex, language, religion or region and the information infringes on the rights and freedom of others.
With regard to the three other new clauses the Bill does not specify what is meant by the ‘right and freedom of others’ or what category of information would ‘disturb peace and well being of the nation’.
There are already increasing concerns that such broad and sweeping new clauses could be misinterpreted to deny information.
Give me a good reason
In what was largely seen as a positive clause the earlier draft RTI Bill had stated that there was no need to state a reason for asking for information.
However, the government’s final RTI Bill says 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 the Bill having a new clause 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 new penal provision for information seekers 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.”
The above clauses not only makes it more difficult to seek information with the need to give reasons to authorities but also limits the use of the information obtained by introducing limiting and penal clauses.
A positive change
In spite of some regressive provisions above, the cabinet has made a positive change in the Bill with regard to the time period required to meet the 15 categories of ‘Organizational and Operational Statement’ that have to be made public.
The original draft Bill gave agencies around 5 years to meet all 15 categories of information that have to already be made public. The cabinet has reduced this to two years.
Earlier exemptions still stand
Despite various social media and other feedback that the earlier draft RTI Bill had exemption clauses that could be used to deny information the final RTI Bill still retains those broad and assumptive exemptions.
Under the Chapter “Limited Conditions for denial,” there are three cases in which information can be denied.
It says that a public authority may deny or limit a request for official information under this Act, one if compliance with the request would substantially and unreasonably divert the resources of the public authority from its other operations, two if compliance would substantially and unreasonably interfere with the performance of the lawful functions of an official of the Government and three if the head of public authority has personally attested to this fact.
With such a section public officials could deny even ordinary information on the above grounds.
Under the Chapter, “Exempt official Information,” there are two clauses which are restrictive.
Section 43 (3) 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 is too general and would exclude all deliberative information, which is one of the most important categories of information that needs to be made public to achieve the objective of the bill which is promoting government accountability.
Another problem is section 43 (4) 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 problem here is with the phrase “or any organization” which can be misused to deny all information.
MoIC still the implementing agency
As per international best practices usually an apolitical and independent or autonomous Tribunal or Commission is created staffed with credible people to be the implementing agency for the RTI Act. The agency has to have powers and autonomy to summon even the senior most government officials.
However, in what may be a unique departure from the norm the Ministry of Information and Communications has been tasked with implementing the RTI Act, being the appellate body and also making various rules and guidelines.
The final RTI Bill by making MoIC the implementer of the Bill has ended up creating a strong and inherent conflict of interest whereby a government agency supposed to share information like others itself has also become the adjudicator.
Still no penalties
Though section 12 of the Act lays down 15 categories of information that should be proactively made public, 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.
Experience in other countries has shown that, without such provisions, compliance with requirements of proactive disclosure remains very weak. There need also to be greater detail of the modes by which such information should be made public – specifically to be accessible to the rural populations and those without access to the internet.
Long time extensions still in place
The final Bill says that ordinarily information should be given within 14 days of the petition and in cases where life and liberty are at stake it should be given in 48 hours.
However, the bill goes onto give a total extension of 30 days from the day of the appeal in case the information required is voluminous.
However, even going further the Bill allows the head of the agency to give an extension of up to 90 days.
This is not in line with best practices as information that is delayed for so long mostly loses its use and meaning.
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. These seem to be inadequate and need to be extended.
