Keeping its promise the PDP government will be introducing a Right to Information (RTI) Bill in the upcoming session of the Parliament.
In fact of the first three cabinet meetings two of them had presentations on the draft RTI by the Ministry of Information and Communication (MoIC) officials. The Cabinet so far has recommended that even political parties including its own be brought under the RTI ambit in the final draft and have suggested other improvements to the draft Bill.
The Cabinet and the Prime Minister has thrown open the draft RTI Bill to public scrutiny and comments before the changes are incorporated and the draft is finalized and put up to the Parliament.
The Bhutanese with some help from a SAARC level voluntary RTI think tank group, Transparency Advocacy Group (TAG) comprising of Information Commissioners, RTI experts, law makers, CSOs, Journalists in SAARC and also involving international expertise and best practices did a thorough and critical review of the draft Bill.
The current draft Bill is an improvement from its earlier more restrictive versions. However, if some key issues are not addressed then the Bill in its current form even if passed in the Parliament would not be an effective law.
Exemptions and denial of information
The biggest problem with the draft RTI Bill presented by MoIC is the long list of information that is exempt. These sections can potentially 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 three cases in which information can be denied.
Section 30 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.
This is an undesirable clause as it is impossible to universally define what would be a “substantial and unreasonable” diversion or interference. This could, therefore, well result in a lot of information being denied and in public authorities not feeling the need to appoint an adequate number of IMOs.
As per international best practices, at best, there can be a restriction to the form in which information is provided, with the further clarification that no information can be denied on these grounds, but only given in a more convenient form.
Under the Chapter, “Exempt official Information,” there are three 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: promoting “government accountability”.
The people mostly know what the decisions of the government are, as they are the ones who are affected by them. For there to be true accountability, the people need to know why the government decided the way it did.
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. There are also no restrictions on what type of information can be treated as confidential. This might very well 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 strong grounds.
Section 40 says, “Notwithstanding any of the exceptions contained in this Chapter, a request for information shall be granted if the overall public interest in disclosure outweighs the harm to a protected interest from that disclosure.”
Though it is a positive statement this section if conversely read could also be misinterpreted as meaning that any information notwithstanding or in-spite of the exemptions list which is seen as causing more harm to a protected interest compared to the overall public interest can be denied.
This clause, if interpreted, in such a way would weaken RTI, as there is no objective or universal criteria to judge whether some information would cause more harm or more good. This could get used to deny all information that embarrasses or implicates an official or the government, thereby seriously undermining the law’s stated objective of promoting accountability. This clause should be modified so that it cannot be turned around and used.
There are also already more than enough safeguards in the Bill to protect legitimate interests.
The Appeals structure and system
In what may create a conflict of interest the Ministry of Information and Communications is both in charge of overseeing the implementations and promotion of the Act and also acting as the first appeals body.
The earlier draft 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?
Most countries with RTI have a National Tribunal or Central Information Commission composed of neutral, autonomous and independent people. The Act does not create or specify the powers of the National Tribunal or Information Commission. 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 court powers which are necessary would conflict with the role of MoIC as a Ministry.
An agency like MoIC could play a role in terms of facilitation and providing resources as a government agency.
Another problem is that the RTI Act and the Institutions set up under it do not have a constitutional or autonomous status. Giving a constitutional status to the RTI helps it to override all laws and makes it more difficult to amend. The implementing or appellate authority also becomes constitutional in nature and can function more effectively.
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. 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.
It would be important to specify that compliance with provisions of Section 12 would be the responsibility of one or more designated senior officers above the Information Media Officers s, who could be penalized for violations.
Apart from the Courts powers the National Tribunal or Information Commission should also have powers to impose fines and take action. Specify penalties for different violations, and on a per day basis for delay. The Act must specify that delay can be penalized at all levels
Long Time Extensions
The Bill says that a public authority shall have five years to meet the full proactive publication requirements of section 12. However, five years is too long and could defeat one of the main purposes of the Act which is pro-active disclosure.
The 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. In those few cases where circumstances are beyond the control of the public authority, this can be argued before the appellate authorities as mitigating circumstances.
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.
Section 52 says “The aggrieved party shall lodge a complaint before the Ministry which shall be processed within 30 working days, provided that the Ministry may, in exceptional cases and as necessary, extend this period of time.” The time period should be specified and should not be unreasonably wrong as it will again defeat the purpose of the Bill in terms of providing a strong legal back up to get timely information.
Section 69 says that in case of any difference in meaning and interpretation between the Dzongkha and the English texts, the former shall prevail. However, given that RTI is a new concept and its essence is drafted in English it would be practical for both versions to be given equal weightage.