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An Option Paper on RTI Bill!

Posted by admin on 2012-07-18 16:17:58 UTC

 

THE GHANA RIGHT TO INFORMATION BILL, 2010

AN OPTION PAPER/ZERO DRAFT

 

Introduction

The Ghana Right to Information Bill, 2010 seeks to provide for the implementation of the Right to Information guaranteed under Article 21(1)(f) of the Constitution of the Republic of Ghana, 1993. The Bill was tabled before Parliament on February 5, 2010 and it was specifically allocated to the Parliamentary Select Joint Committees on Communications; and Constitutional, Legal and Parliamentary Affairs to scrutinize and come up with recommendations. The Joint Committees held public consultations on the Bill between July and August 2011 in which they gathered various views on the content of the Bill. In March 2012, the Joint Committee held a review meeting at which it was decided that certain key issues within the Bill needed to be re-visited or improved upon in order to bring the Bill in conformity with international human rights standards and best practices on the right to information. It is in respect of this decision that we were requested to produce a zero draft with regard to the following specific areas/issues identified by the Joint Committee.

 

               i.          Exemptions

             ii.          Private bodies

           iii.          An Independent Information Commission

           iv.          Fees

             v.          Accountability measures for collecting and managing internally generated funds

           vi.          Appeal process; and

         vii.          Declassification of information.

Sources

In producing this zero draft, we have taken into account the reputation of Ghana as a beacon of democracy in Africa and the fact that many African countries look to Ghana for good example to emulate.  A Ghana Right to Information Law is thus most likely to be a reference source for other African countries struggling to build democratic institutions of governance and a culture of democracy. We have also taken into account the fundamental principles underpinning any genuine and effective right to information legislation which include, transparency, openness, effective participation of the population in the processes of governance, accountability and the curtailment of rank corruption, the promotion of social justice and the delivery of social services through the role the right to information plays in giving expression to other rights. Then have been the views expressed by Ghanaians across the length and breadth of the country during the nation-wide consultations held by the Parliamentary Select Joint Committee. We have also considered the following documents as a guide to the zero draft.

 

a)         The Commentary of the Coalition on the Right to Information, Ghana.

b)        The Model Draft Law for AU Member States on Access to Information prepared under the auspices of the Special Rapporteur on Freedom of Expression and Access to Information.

c)         The Declaration of Principles on Freedom of Expression in Africa by the African Commission on Human and Peoples’ Rights.

d)        The Public Right to Know Principles of Article X1X

e)         A Model Freedom of Information Law by Article XIX, endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression,

f)         The Freedom of Information Act of the Republic of Liberia, 2010.

g)        The Freedom of Information Act of the Federal Republic of Nigeria, 2011.

h)        The Promotion for Access to Information Act of the Republic of South Africa, 2000.

i)          The India Right to Information Act, 2002.

j)          The UK Freedom of Information Act, 2000.

k)        The Mexican Federal Transparency and Access to Public Government Information Law, 2002.

 

PROPOSED AMENDMENTS TO THE GHANA RIGHT TO INFORMATION BILL- ZERO DRAFT

 

GENERAL EXEMPTIONS

 

A.    Refusal

A public or private body/agency may refuse to grant access to informationonly if the information falls within an exemption provided for in this Act.[Drawn from the AU Draft Model Law]

 

B.     Public interest override

(1)     Notwithstanding any of the provisions of this Act on exemptions, information is not exempt and the information officer must grant a request for access to information if the disclosure of the informationwill reveal or reveals evidence of:

 

(a)    a contravention of, or failure to comply with a law; or

(b)    an imminent and serious risk to public safety, public health or the environment;

(c)    miscarriage of justice;

(d)   abuse of authority or neglect in the performance of official function

(e)    abuse of  authority or neglect in the performance an official duty or

(f)    other legitimate public interest so requires

 

and the benefits of disclosure outweigh the harm or danger that could occur in the event of disclosure

 

Commentary:We have reviewed slightly the original section 18 by including ‘information that ‘will reveal’and also a general ‘legitimate public interest consideration’. This with respect is consistent with international best practice and human right norms that subjects exemptions to a general public interest override. Currently, section 18 subjects exceptions only to the specific instances mentioned in sub-clauses (a) to (e).  As is well established in the law, public interest is not a closed category and the danger of a limited public interest override clause is that it may omit an unanticipated situation where the public interest requires that the exemption give way to disclosure.

 

(2)     An information officer must consider whether subsection (1) applies in relation to any information requested before refusing access on the basis of the          information being exempt under the provisions of this Act. [Drawn from the AU Draft Model law]

 

C.    Classified Information

(1)     The fact that any information in the custody of a public body/agency is kept by that body/agency under security classification or is a classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public body/agency to which the application is made shall decide whether such information is of a type referred to as exempt information under this Act

 

(2)     If the public body/agency to which the application in subsection (1) is made decides that such information is not a type mentioned in the sections referred to in subsection (1), access to such information shall be given to the applicant, notwithstanding its categorization as classified security information.

[Drawn from the AU Draft Model law]

 

Commentary: Sometimes, attempts are made to overreach the provisions of a right to information legislation by the simple sleuth of hand of classification as “top secret’, for your eyes only’, ‘highly confidential’ etc.  What this provision does is to ensure that officials do not by mere form of classification pre-empt the need to show whether the information fails within the categories of exemption specified in this Act.

 

D.    Information already available to the public

Notwithstanding any provision relating to exempt information, a body may not refuse to disclose information where the information is already publicly available.

 

We propose all the above should precede section 6 and other provisions on exemptions so that the current impression that the Act is more about exemptions than the right to, and obligation to disclose, information is avoided.  These provisions preceding the exempt provisions will thus give the positive emphasize that the law is about the right to information and not otherwise. The sections will accordingly be renumbered.

 

E.     Information from the office of the President, the Vice-President and the Cabinet

(1)     Information is exempt from disclosure:

 

(a)      if it is for submission or has been submitted to the office of the President or of the Vice-President or to the Cabinet; or

(b)       if it contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendation, minutes or consultations made or given to the President, the Vice-President  or Cabinet

and disclosure would or is likely:

 

(i)     to cause material prejudice to the effective formulation or development of government policy;

(ii)   seriously to frustrate the success of a policy, by premature disclosure of that policy;

(iii)significantly to undermine the deliberative process in the office of the President, Vice-President or the Cabinet by inhibiting the free and frank provision of advice or exchange of views;

(iv)to cause material prejudice to national security.[Addition to comply with the harm test]

 

(2)     Where information requested is exempt by reason of any of the grounds/provisions set out in sub-section (1), the Secretary to the President or the Secretary to the Vice president or the Secretary to the Cabinet or the National Security Coordinator shall state so by a signed certificate giving reason why it is exempt and, subject to the right of appeal to the Information Commission under section …., such certificate shall be conclusive evidence that the information is exempt..

 

(3)     Information which contains factual or statistical data and does not disclose information concerning a decision, deliberation or discussion of the office of the President, the Vice President or of the Cabinet is not exempt information.

 

(4)     This section does not prevent the President, the Vice President or the Cabinet from publishing or granting access to information that is otherwise exempt.

 

(5)     For purposes of this section, a reference to Cabinet includes a reference to a committee or sub-committee of the Cabinet.

 

Commentary:

(a)      We have combined Clauses 5 and 6 of the Bill into one section.

(b)     We have been guided by the provisions of the Draft Model Law for AU Member States and also Article XIX’s Model Freedom of Information Law as well as international best practice that disapproves of blanket exemptions, which are not subject to any harm test as contravening the right to information.

(c)      We have also replaced the phrase ‘Head of National Security’ with National Security Coordinator, as no such office as the ‘Head of National Security’ exists under the Security and Intelligence Agencies Act, 1996 (Act 526).  The office that is established under that Act is the National Security Coordinator.

 

F.     Information relating to law enforcement, public safety and the protection of property

 

Commentary: Refer to current Section 7 in the Bill. We have removed national security from the sub-heading as that is dealt with by combining section 7(3) with section 9 as a separate section.

 

(1)     Information is exempt from disclosure if it contains matters which if disclosed would or can reasonably be expected to:

 

(a)    materiallyprejudice the prevention, detection or curtailment of a contravention or possible contravention of a law;

(b)   materially prejudice the investigation of a contravention or possible contravention of a law;

(c)    materiallyprejudice the plan or manner of use of investigation techniques and procedures in law enforcement;

 

Commentary: We have introduced the adverb ‘materially’ and replaced ‘interfere’, which is overly broad with ’prejudice’, which is more concrete.

 

(d)   to disclose the identity of a confidential source of information, matter or the information given by a confidential source in respect of law enforcement;

 

Commentary: We note that sub-clauses (b), (c) and (d) in fact entail no more than an elaboration of sub-clause (a) and are in that sense repetitive. They simply add to the undesirable impression of a long list of exemptions. They may therefore be deleted as superfluous.

 

(e)    materiallyprejudice the prosecution of an offender;

 

Commentary: We have substituted ‘offender for ‘offence’, we believe this is a drafting error.

 

(f)    endanger the life or physical safety of a person;

(g)   prejudice the fair trial of a person or the impartial adjudication of a case;

(h)   materially interfere with the maintenance or enforcement of a lawful method or procedure for protecting the safety of the public;

(i)     endanger the security of a building, structure or means of transport or system, including computer and communications systems for which  security is reasonably required;

(j)     prejudice the security of a prison or place for lawful detention;

(k)   prejudice a system or procedure for witness protection or any other procedure for the protection of persons or property where the protection is required

 

(2) Information shall not be withheld: 

 

Refer to Section 7 (2) of the current Bill:

We propose here substituting for the passive words ‘Information is not exempt from disclosure’ the active words ‘Information shall not be withheld’. We do not propose any changes to the rest of the section 7 (2).

 

G.    Information that affects the security of the State and the defence of the country

 

Commentary: Section 7(3) should be combined with section 9 as they both deal with matters of security and defence of the country as follows:

“Information that affects the security of the State and the defence of the country”

 

(3)     Information created by or in the custody of the Armed Forces or the security and intelligence agencies established under the Security and Intelligence Agencies Act, 1996 (Act 526) which relate to the security of the State is exempt information if disclosure will prejudice the security of the state.

 

Commentary: This replaces the current section 7(3) which provides for blanket exemption of every piece of information, without distinction, in the custody or created by these bodies even where their disclosure may not cause any harm by subjecting the exemption to a legitimate harm test.

 

(4)     Information is exempt if its disclosure can reasonably be expected

(a)    to damage or prejudice the defence of the State or a foreign state allied to or friendly with the State; or

(b)   to be prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.

 

Commentary: We think the sub-clause (b) is not necessary as it is simply an elaboration of section 7(1) (a)

 

H.    Economic and any other interests

 

Commentary: Refer to Section 10 in the current Bill. We suggest that the provisions of section 10 be maintained except section 10 (c), which is couched in extremely broad and vague terms and can be used by public officials to deny otherwise legitimate requests for information. 

 

We accordingly propose that either section 10(c) be deleted altogether or be reformulated thus:

 

(c)  if the disclosure can reasonably be expected to cause serious disruption of business and trade in the country.

 

Section 10 (f) be expanded as follows:

 

(f)  it contains questions to be used in academic or professional examination or recruitment or selection process if the release is likely to jeopardize the integrity of that examination or recruitment or selection process. [Addition highlighted]

 

I.       Economic interests of third parties.

 

Commentary: Refer to section 11 in the current Bill. We only propose that changes be made to section 11(1) of the current Bill. The terms ‘expressly or impliedly’ should be deleted from the section 11(1) so that the section reads thus:

 

(1)     Information which would reveal a trade secret, research, scientific, technical, commercial, financial or labour related information of a private body or which is supplied in confidence is exempt information if the disclosure can reasonably be expected:

(a)   retain current section 11(1) (a);

(b)   retain current section 11(1) (b);

(c)    to result in similar information not being supplied to the public or private body, where it is in the public interest or the legitimate interest of the private body that such information continues to be supplied. 

 

Commentary: We propose that this should replace the original sub-clause (c)] to deal with both public bodies/agencies or private bodies/agencies and also correct infelicitous language.

 

J.      Information relating to tax

 

Commentary: Retain current text.

 

 

K.    Internal working information of agencies

 

Commentary: Refer to Section 13 in the current Bill.

 

(1)     Information is exempt information which if disclosed would or would be likely to:

 

(a)    cause material prejudice to the effective formulation or development of policy by a public or private body/agency;

(b)   seriously frustrate the success of a policy, by premature disclosure of that policy;

(c)    significantly undermine the deliberative process in a public or private body/agency by inhibiting the free and frank provision of advice or exchange of views in the cause of or for the purpose of making a decision in a public or private body/agency;

(d)   significantly undermine the effectiveness of a testing or auditing procedure used by a public or private body/agency.

 

Commentary: The above section has been reformulated to take account of both public and private bodies/agencies.

 

(2)     Information is not exempt under sub- section (1):

 

(a)    if it merely contains material that has been publicly mentioned as forming the basis of a policy or formulating public policy;

(b)   if it contains only factual, technical and statistical data.

 

Commentary: Sections 14, 15 and 16 of the current Bill should be put under one section. The new section should read as follows:

 

(1)     Information is exempt information

 

(a)    if the information is privileged from production in legal proceedings under the Evidence Act 1975 (NRCD) as may be amended from time to time unless the person entitled to the privilege has waived it;

(b)   if its disclosure can reasonably be expected to constitute contempt of court or a quasi-judicial body.[Addition highlighted]

 

L.     Disclosure of personal matters

 

Commentary: Refer to section 17 in the current Bill. Retain the text of section 17 (1).

 

Amend the text of section 17 (2) thus:

 

(2)     Disclosure is unreasonable if it reveals or is likely to reveal information about the individual’s:

 

(a)    physical or mental health;

(b)   confidentialmarriage or employment record;

(c)    confidentialprofessional, commercial or financial affairs.

 

Commentary: Section 17 (2)(c) in the current Bill should be deleted since it is already catered for and protected under section 11.

 

Retain the whole of section 17 (3) and add the following as 17(3) (k)

(k)   it is about an individual’s physical or mental health or well being who is under the care of the applicant and who is:

 

(i)       under the age of 18 years; or

(ii)     incapable of understanding the nature of the request

and giving access would be in the individual’s best interest.

 

We propose that the sections on exemptions in their entirety be removed from where they currently are and are inserted after the current section 29, which deals with Manner of Access.  This will ensure that the Act, as a Right to Information Act, sets out the procedure and the grounds for access to information in the initial sections, and only after this should the exemptions follow.  We believe that this will enhance the impact of the Act as an access to information Act on anyone who reads it and make it user friendly.  Currently, the first impression one gets upon reading the Bill is that it is more about exemptions than access.  The South African, Indian, AU Model and Article XIX Model and Liberia and Mexican laws all follow this format.  And we respectfully urge the same on Honourable members

 

M.   Public interest override

 

Commentary: Section 18 has been removed and placed at the beginning of the provisions dealing with exemptions.  It has also been expanded to include a general public interest override.

 

 

ACCESS TO INFORMATION FROM PUBLIC AND PRIVATE BODIES

 

A.    Public body/agency (Definition)

A public body/agency for the purposes of this Act includes:

 

(a)    any body established under the Constitution;

(b)   a Ministry, governmental department, District Assembly, or a local authority; or

(c)    a statutory or any other body corporate or unincorporated or a public office, funded in whole or part from public funds or in which the Government has an interest or shares.

 

B.     Private body/agency (Definition)

A private body/agency for the purposes of this Act is a juristic person, which is not a public body as defined in this Act and which is wholly owned, controlled and financed by individuals or corporate bodies, not being public bodies and which:

 

(a)    carries out public function or statutory functions or provides public  services; or

(b)   exploits the natural resources of the country.

 

Commentary: We are proposing generally that instead of the term ‘government agency’ we substitute wherever the term appears the phrase   ‘public body/agency’.  This is because ‘government agency’ has, in our view, a rather limited reach as compared to ‘public body/agency’ which is intuitively broad enough in its everyday meaning to encompass the reach of public bodies.   Similarly the phrase ‘private body’ appears to be a simpler and more general term than private agency.  Finally, most right to information legislation use the phrase ‘public or private bodies’.   There appears in our respectful view, no compelling reason why the Ghana legislation should depart from this healthy tradition of right to information legislation. These definitions should be under the definition section in section 65 of the current Bill.

 

C.    Right of access to information in custody of private bodies/agencies

 

(1)     Every person shall have the right of access to information in the custody of a private body/agency, if:

 

(a)    the information sought is necessary for the protection of any right, including the right to the protection of the fundamental rights of the applicant or the right to the protection of any statutory and common law right; or

(b)   the information is necessary for the protection of broad social or public interests, such as public safety, public health, the environment or public funds.

 

(2)     A person shall disclose the right or public interest he or she seeks to protect where he or she applies for information from a private body/agency.

 

(3)     The exercise of the right in subsection ….is subject to the exemptions specified in sections…. to….

 

(4)     Where a private body/agency receives an application for access, part of which is exempt, the information officer or the head of the private agency as the case may be, shall disclose to the applicant as much of the information as can reasonably be separated without disclosing the exempt part.

 

The entire section above should come immediately after section 1 in the current Bill.

 

D.    Designation of information and deputy information officers

 

(1)     Every public or private body/agencymust designate an information officer and a deputy, where necessary, to enable the body/agency comply with the requirements of this Act.

 

(2)     If a private agency fails to designate an information officer, the head of the body will be the information officerfor the purposes of this Act.

 

(3)     A person appointed as an information officermust be competent to exercise the powers and perform the duties and functions of an information officer under this Act.

 

(4)     The information officerhas the powers, duties and functions that are conferred or imposed on the information officerby this Act.

 

(5)     A deputy information officermay exercise all the powers, duties and functions of an information officer.

 

(6)     Each person designated as a deputy information officerof a public or private agency shall be subject to the supervision of the information officerof that public or private agency in the performance of the powers, duties and functions under this Act.

 

This section on designation of information officers should follow immediately after preceding section on right of access to information.

 

E.     Compilation and publication of the manual of a private body/agency

 

Responsibility of head of private body in respect of access

(1)     The head of a private body/agency shall, within twelve months from the date of the coming into force of this Act, compile and publish in accordance with guidelines issued by the Information Commission an up-to-date manual containing:

 

(a)    the postal and street address, phone and fax number and, if available, electronic mail address of the and website of the private body/agency

(b)   a description of the guide referred to in this section, if available, and how to obtain access to it;

(c)    the latest information regarding the categories of information of the body/agency which are available without a person having to request access in terms of this Act and those available on request;

(d)   a description of the information of the agency which is available in accordance with any other legislation;

(e)    sufficient detail to facilitate an application for access to information of the body;

(f)    description of the subjects on which the body holds records and the categories of records held on each subject; and

(g)   such other information as may be prescribed by the Commission.

   

(2)     The head of a private body/agency must on a regular basis update the manual referred to in subsection (1).

 

(3)     Each manual must be made available as prescribed under the guidelines of the Commission.

 

(4)     For security, administrative or financial reasons, the Information Commission may, on request or of its own accord, by notice in the Gazette, exempt any private agency or category of private agencies from any provision of this section for such period as the Commission thinks fit.

 

The above section on ‘responsibility of the head of the private body/agency’ should follow section 3 in the current Bill.

 

Provision of guidelines for the manual

The Information Commission shall, in consultation with the Minister of Justice/Attorney General, provide guidelines for the preparation of the manual under section …..(Immediately above).

 

This section on ‘provision of guidelines for the manual’ should follow the section on ‘responsibility of the head of the private body/agency.

 

F.     Procedure for access to information of private bodies/agencies

 

(1)     An application for access to information held by a private body/agency shall:

 

(a)    be made in writing to the body/agency;

(b)   contain sufficient description or particulars to enable the information to be identified;

(c)    indicate the form and manner in which access is to be granted;

(d)   state the capacity of the applicant to the satisfaction of the officer to whom the application is made, if the application is made on behalf of another person;

(e)    state the address in the country (postal, street, fax  or e-mail) to which a communication or notice can be sent;

(f)    state the individual right or public interest sought to be protected by the information requested for   and provide an explanation of how the information is likely to protect the right or interest; and

(g)   include a statement that the application is for the protection of the life or liberty of a person and the basis for it, where the applicant is of the belief that the information is necessary to safeguard the life or liberty of a person.

 

(2)     Where an applicant is unable to make the application in writing due to illiteracy or a disability, the applicant shall make the request orally.

 

(3)     Where a request is made orally under subsection (2), the request shall be reduced into writing by the officer to whom the application is made who shall keep a copy of the written request as recorded and as duly authenticated by the applicant.

 

(4)     Where an application does not sufficiently describe the information required, the private body/agency to which the application is made shall so inform the applicant and offer the applicant the necessary assistance to identify the information.

 

Decision on application

 

(1)   Where an application for access is received by a private body/agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

(2)   The notice shall state:

(a)    whether or not access to the information will be given;

(b)   whether access to only a part of the information can be given and the reason for giving only a part ;

(c)    whether or not there has been a transfer to a subsidiary or holding company;

(d)   whether or not there is a deferred access under section ….

 

(3)   Where the information officer decides to give access, the notice shall state:

 

(a)     the period which shall not be more than fourteen days, within which the access can/will be given;

(b)    the form and manner in which access will be given;

(c)     whether access is to only part of the information because the other part is exempt

(d)    the day on which the body/agency expects he information to be published or submitted in the case of a deferred access under section …;

(e)     the fees to be paid by the applicant, if any

 

(4)   Where the body/agency decides to refuse access, the notice shall state:

 

(a)     the reason for the refusal;

(b)   the right of the applicant to seek redress by appealing to the Information Commission under section …… of this Act.

(c)    the name and rank of the officer who dealt with the application.

 

Extension of time to deal with application

 

The same as section 26 (1) in the current Bill, except that, we propose the deletion of the Minister’s discretion on application to extend the period for a further three months. [Please see our proposals on timelines below]

 

We propose a new section after section 26 thus:

 

Notwithstanding sections 23 (1) and (3) (a) and 26 (in the current Bill), where an application relates to informationwhich reasonably appears to be necessary to safeguard the life or liberty of a person, the information officermust within forty-eight hours or some such shorter period,

 

(a)    determine whether to grant the application;

(b) notify the applicant of the decision in writing; and

(c) if the application is granted, give the applicantaccess to the information.

 

Notwithstanding subsections (1), (3)(a) and the section on extension of time(above), where information requested contains third party information, an applicant may not be granted access to that informationuntil such time as any right of the third partyto appeal the release of the information has expired or any appeal lodged by the third party has been finally determined.

[Drawn from the AU Draft Model Law]

 

 

 

 

48 hour request refused

 

If upon reviewing an application, it does not appear to the information officer that the information requested reasonably appears to be necessary to safeguard the life or liberty of a person, the information officer shall within forty-eight hours of receipt of the application:

 

(a)    give notice of his decision, including adequate reasons for the decision, to the applicant;

(b)   inform the applicantthat, subject to the applicant‘s right to apply to the Information Commission for a review, the information officerwill make a decision regarding whether  to grant access to the requested informationwithin the time period specified in the combined effect of subsection (1) and (4), that is fourteen working days and a further fourteen days.

 

Information that cannot be found or not in existence

 

Retain section 24 of the current Bill.

 

Deemed refusal

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…,within the extended period of time, the information officer shall be deemed to have refused the application.

 

G.    Internal reviews and appeals from a decision of a public body/agency

 

Refer to section 38 in the current Bill.

 

(1)     Except a otherwise provided in this Act, a person aggrieved by a decision of the information officer of a public body/agency may submit an application for review of the decision to a senior officer specifically designated for that purpose by the Minister responsible for the body/agency to be known as the Internal Information Review Officer.

 

Commentary: Instead of vesting the Minister with the duty to review, the responsible Minister rather designates a senior official in the Ministry for this function.  This is because invariably, the minister would be too busy with other core functions of the Ministry to have time for internal reviews under the Act.

      

(2)     An application for review shall be:

 

(a)    in writing and addressed to the Internal Information Review Officer; and

 

Commentary: Subsection 2 (a) and (c) of section 38 in the current Bill have been combined.  We also propose that subsection (b) on payment of appeal fees be deleted as this could serve as a powerful disincentive and stifle the interest of citizens and other persons to challenge negative decision on their applications.

 

(b)   submitted within twenty-one working days after receipt of the notification of the decision sought to be reviewed, provided however that the Internal Information Review Officer may where it is just and fair extend the time within which to file an application for review.

 

(c)    Where the applicant is unable for whatever reason to write the review application, the information officer shall assist him in writing the application for review.

 

Action by the Internal Information Review Officer

 

Commentary: Refer to section 39 in the current Bill. Consistent with our proposal for replacing the Minister with the Internal Information Review Officer, we propose that every where there is a reference to the Minister in the part dealing with internal review, we substitute Internal Information Review Officer.

 

Beyond this, only a reformulation of subsection (3) of section 39 in the current Bill thus:

 

(3)     The Internal Information Review Officer shall conduct the review in camera only where the demands of confidentiality require that the review be so heard.

 

Commentary: This new formulation is in our view consistent with the fundamental principle of openness and transparency which underpins any genuine right to information legal regime.  Holding review proceedings in camera as a matter of course only reinforces the culture of secrecy that the RTI law seeks to transform.  This is especially the case as subsection (4) provides against disclosing any information which is exempt during review proceedings.  However, provision is made to cater for situations where there is a legitimate need for proceeding of the internal review be held in camera.

 

Decision of Internal Information Review Officer

 

Refer to section 40 in the current Bill.

 

(1)     The Internal Information Review officer shall notify the applicant of his decision on the application within twenty-one working days of receipt of the application for a review.

 

Commentary: The phrase ‘if there is no delay or other default on the applicant’, in the current text of the Bill, has been deleted so that the law can be seen as a way of encouraging review and dealing with the applications on their merit.

 

(2)     The notice shall state:

 

(a)    the reason for the decision and the provision of the Act relied on; and

(b)   where the review is dismissed that the applicant may file an appeal to the  Commission established under section …. of this Act.

 

Commentary: We propose here the Independent information Commission instead of an Appeals Commission.  We are also of the considered view that provision of section 40 (2) of the current Bill which provides that where the review is dismissed, the applicant’s recourse is to file a application for judicial review in the Supreme Court is seriously restrictive and will tend in practice to stultify the right of judicial review in our courts.  This is so because in every situation that the review application is dismissed because the information requested for is adjudged exempt information, it would be because of national security or other public interest considerations.  This will mean that in every situation where a review is unsuccessful, the applicant’s only recourse is to the Supreme Court.  Most Ghanaians would not have the money, determination, nor resources to apply for judicial review to the Supreme Court.  The result is that many Ghanaians would be denied the opportunity to assert their right to information.  What is more, Article 135 (1) and (2) of the Constitution that this section purports to rely upon does not require that appeals against the decision of the internal review process should be lodged in the Supreme Court.  Were this to be the case, there would be no need for internal review in the first place, as any dispute over exempt information,  would, by this interpretation of Article 135 (1) and (2), be referred to the Supreme Court for judicial review. Fortunately, this reading of Article 135 is with respect not correct.  Article 135 (1) and (2) deals with situations where disputes arise in court as to whether an official document should be produced in court because its production or disclosure of its contents will be prejudicial to the security of the State or injurious to the public interest.  Article 135 does not deal with where the dispute arises outside the context of court proceedings.   Thus, it would be constitutional where such a dispute arises at the internal review stage for the aggrieved applicant to appeal to the Information Commission for review.  It is only where the applicant or the public or private agency, as the case maybe, is aggrieved by the decision of the Information Commission that an application for judicial review should lie to the Supreme Court.  This way, the applicant who is aggrieved with the decision of the internal review process will, in the first instance, be afforded a ready, simple, not-costly or legalistic and independent forum to ventilate his grievance against a dismissal of his review application.

 

(3)     An applicant aggrieved with the decision of the Internal Information Review Officer may appeal to the Information Commission established under section … of this Act within sixty days of receipt of the decision.

 

H.    Appeals from the decision of an information officer of a private body/agency

 

An aggrieved applicant shall apply to the Information Commission established under section … of this Act against any decision of an information officer of a private body/agency within sixty days of receipt of the decision of the information officer.

 

Commentary: In the case of private bodies/agencies, we propose that there should be no internal review.

 

FEES

 

Commentary: We propose that the provisions on fees regime should be in one part, instead of being scattered in different parts of the Bill and in some instances appearing to be inconsistent with each other.  Some provisions suggest that it is the body/agency that determines the fees to be charged, while other provisions appear to vest in the Attorney-General the power of establishing a scale of fees for all public bodies/agencies. By bringing together provisions on fees under one part, the fees regime would become clearer to the ordinary person, the inconsistencies and tensions in the provisions will become apparent and be readily corrected.

 

Furthermore, in line with international best practice and human right norms, it is proposed that the fees should be limited to the actual cost of reproduction of the information requested for.  Costs should not be an impediment to the enjoyment of an essential fundamental human right such as the right to information and should not be permitted to deter applicants. This also means that the amount of time it takes an agency to search for, and retrieve information requested shall not be at the cost of the innocent applicant, who can hardly be held responsible for the poor system of record keeping, maintenance and retrieval of the body/agency concerned.

 

Finally, the requirements of advance deposits and application fees; and also the provision that where the application is rejected the applicant shall pay for the cost of dealing with application, should all be deleted.

 

The complex contradictory fees structure in the current Bill can be found in the following sections:

 

Section 19(1) (f) – an application shall be accompanied with the relevant fee.  What ‘the relevant fee is remains a mystery.

           

Section 23 (3) (e) – where the information officer decides to give access, the notice shall state the fee to be paid by the applicant.

 

Section 23 (4) (d) - Where the agency decides to refuse access, the notice shall state the fees payable for dealing with the application.

 

Part of section 23 (6) refusal on grounds of failure to pay deposit fee

 

Section 25 (1) – Where the costs of the agency for dealing with an application  are likely to exceed the amount of the application fee the agency may request  the applicant to pay a reasonable deposit determined by the agency.

 

25 (5) - An agency may refuse to give access to information if a fee or advance deposit payable is not paid within the period notified to the applicant.

 

Section 27 (1) – An agency may refuse to continue to process an application where the agency has by notice demanded payment of an advance deposit in relation to the application and the4 applicant has not paid the deposit within the period specified in the notice.

 

Section 50 (1) - An applicant seeking an access to information under this Act shall pay the fee or charge determined b the minister for justice;

 

Section 50 (2) - The Minister for justice shall specify by legislative instrument issue relevant guidelines to the agencies.

 

            Section 50 (3) – the guidelines shall specify the amount payable for

                       

(a)   A search for every hour or fraction of an horn of a manual search required in excess of two hours to locate the information;

(b)   The computer access and other costs incurred in locating, retrieving, processing and photocopying the information;

(c)    The cost of preparing the information for disclosure; and

(d)    postage cost

 

In pace of these different sections on fees we propose the following:

 

A.    Fees chargeable by public or private body/ agency

 

(1)     An applicant under this Act in respect of information held by a public  or private body/agency shall not be required to pay any fee:

 

(a)    on lodging an application for information;

(b)   in relation to time spent by a public or private body/agency  in searching for the information requested;

(c)    in relation to time spent by the public or private body/agencyin examining the informationto determine whether it contains exempt informationor deleting exempt informationfrom a document; or

(d)   in relation to time spent or costs incurred by the public or private body/ agencyin transcribing the information.

 

(2)     Subject to subsection (3), the public or private body/agencymay charge the applicant a reproduction feeconsisting of the reasonable reproduction costs incurred by the public body/agency and for sending the information to the applicant.

 

(3)     No reproduction feeshall be payable:

 

(a)    for reproduction of personal information of the applicant, or where the application is made on behalf of another person, the personal information of the person on whose behalf the applicationis made;

(b)   where the public agency/ bodyhas failed to comply with the time for responding to an applicationunder section … or where an extension of time has been made under section … within that extended period of time; or

(c)    where the applicant is an indigent.

[Drawn largely from the AU draft Model law as well as portions of the Mexican law and Indian RTI Act]

 

B.     Fees not part of the Consolidated Funds

 

(1)     The fees and charges received by a public body/agency under this Act shall, in accordance with Article 176 (2) (b) be retained by the body/agency in a specified account to be used to defray the expenses incurred by the body/agency in the performance of its functions under this Act and shall not form part of the Consolidated Fund.

 

(2)     The Minister for Justice shall, in consultation with the Information Commission, by legislative instrument, establish the accounting procedures for the management of these fees.

 

ESTABLISHMENT OF AN INDEPENDENT INFORMATION COMMISSION

 

A.    Establishment of an Information Commission

 

(1)     There is hereby established an I Information Commission, referred to in this Act as “the Commission”.

 

(2)     The Commission shall be a body corporate with perpetual succession and a common seal and may sue and be sue in its corporate name.

 

(3)     The Commission may for and in connection with the discharge of its functions purchase, hold, manage, or dispose of any movable or immovable property and may enter into such contracts and transaction as may be reasonably related to its functions.

 

B.     Functions of the Commission

 

The Commission shall:

 

(1)     be responsible for the promotion and effective implementation of the right to access of information under this Act and may for this purpose issue written guidelines and directives to all public and private bodies/agencies subject to the provisions of this Act;

(2)     monitor and report on compliance by all bodies/agencies subject to the provisions of this Act;

(3)     make recommendations for reform both of a general nature and directed at specific agencies;

(4)     carry out nation-wide public education and popularization of the provisions of this Act by disseminating or publicizing the requirements of this Act and the rights of the individual under it;  and to that end collaborate with the National Commission for Civic Education, the Commission for Human Rights and Administrative Justice and identifiable civil society stakeholders/organizations;

(5)     receive, inquire into and determine appeals/complaints from aggrieved applicants against the decision or other act of commission or omission of any body/agency subject to this Act;

(6)     conduct audit compliance with the provisions of the Act by private and public bodies/agencies;.

(7)     carry out investigations on its own initiative or upon receipt of an appeal or complaint from the public, into any matter  related to the enforcement of the provisions of this Act;

(cool.gif     submit before Parliament not later than the 30th June of each year an annual report of its activities and compliance by all agencies subject to this Act;

(9)     from time to time lay before Parliament such other reports as it deems appropriate and Parliament may debate the report and pass the resolution that it considers fit.;

(10)train information officers and such other relevant officers on their obligations and powers under this Act;

(11)refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences committed under this Act for investigation and prosecution;

(12)initiate research to be conducted into matters affecting the purposes of this Act;

(13)take such other appropriate measures as the Commission considers necessary to give effect to the provisions of this Act.

 

C.    Independence and autonomy of the Commission

 

(1)     Except as otherwise provided by the Constitution or by this Act, the Commission shall not be subject to the direction or control or any person or authority in the performance of its functions.

 

(2)     The Commission shall develop its own rules and procedures to regulate its affairs through a process of public consultation.

 

D.    Composition of the Commission

 

(1)     The Commission shall consist of five (5) or seven (7) members, one of whom shall be the chairperson who shall be appointed in the following manner:

 

(a)    The President shall issue a public call for nominations.

(b)   The nominations and interview process shall be transparent and include public participation.

(c)    The selection and appointment shall be completed within … months of the call for nominations.

(d)   The President shall appoint the Information Commissioners, including the chairman thereof upon the recommendation of a committee made up of:

 

(i)       One representative each from the majority and minority in Parliament;

(ii)     One representative from the Ghana Bar Association;

(iii)   One representative from Organised Labour;

(iv)    One representative from the Association on of Industries of Ghana and the Ghana Chamber of Commerce

(v)     One representative from the Ghana Journalists Association;

(vi)   One representative from the Network of Women’s Rights;

(vii)One Representative from the Christian Group (the National Catholic Secretariat, the Christian Council and the Pentecostal Council);

(viii)              One representative from the Federation of Muslim Councils and the Ahmadiyya Missions.

 

E.     Qualification of members of the Commission

 

(1)     The Information Commissioners shall:

(a)    be citizens of Ghana;

(b)   be fit and proper persons appropriately qualified for appointment;

(c)    be recognized human rights advocates;

(d)   be independent, impartial and accountable; and

(e)    have demonstrable knowledge in law, access to information, transparency, record-keeping and classification, and public and corporate governance.

 

(2)     A person shall not be qualified to be appointed an Information Commissioner if he/she:

 

(a)    has within the past five years held an office or is an employee of a political party or holds a political appointment in government or is a Member of Parliament;

(b)   has been convicted for high crime under the Constitution or high treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or for any offence punishable by death or by a sentence not less than ten years;

(c)    has been adjudged or otherwise declared bankrupt or insolvent under the laws of Ghana and has not been discharged;

(d)   is of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or

(e)    has a record of wrongful and deliberate destruction or falsification of official information.

 

F.     Tenure of office of members

 

(1)     An Information Commissioner shall hold full-time office on the Commission for a term of five years, subject to reappointment for one further term of four/five years.

 

(2)     An Information Commissioner must not be appointed for any further term after the expiry of the term of reappointment in subsection (1).

 

(3)     The President may appoint an Interim Information Commissioner for a period not exceeding six months in consultation with the Majority and Minority leaders of Parliament if:

 

(a)    any Information Commissioner is incapacitated, removed from office or resigns; or

(b)   in the period immediately after the tenure of an Information Commissioner has ended.

 

(4)     The President shall, subject to the approval of a two-third majority of Parliament, have the power to terminate the appointment of an Information Commissioner where:

 

(a)    the person is mentally or physically incapable of performing the functions and duties of the role;

(b)   the person is insolvent; or

(c)    stated misconduct has been established.

(d)   stated misconduct has been established.

 

(5)     During their term of office, an Information Commissioner and Interim Information Commissioner must not occupy or engage in any other activity, profession or trade outside their office for financial gain.

 

G.    Remuneration

 

(1)     The Chairperson shall receive a salary equivalent to that of a Justice of the Court of Appeal/Supreme Court.

 

(2)     The other Information Commissioners shall receive a salary equivalent to that of a Justice of the High Court/Court of Appeal.

 

(3)     The Chairperson and Information Commissioners shall receive reasonable travelling and living expenses incurred in the course of the conduct of their duties.

 

(4)     The Chairperson and Information Commissioners shall respectively be entitled to the equivalent pension benefits as that of the Justice of the Court of Appeal/Supreme Court and High Court/Court of Appeal respectively, provided that where any Commissioner already enjoys public pension the pension he or she already enjoys shall be deducted from his or her pension as a Commissioner.

 

(5)   Any other issues relating to the payment of salaries, expenses, pensions or compensation shall be guided by legislation relevant to these issues applicable within the public service and the judiciary of the Republic.

 

H.    Appeals or complaints to the Commission

 

(1)     A person who has made a request for information may apply to the Commission  for a decision that a public or private body/agency subject to this Act has failed to comply with any obligation placed on it in respect of applications for disclosure of information , including:

 

(a)    refusing to indicate whether or not it holds a record or to communicate information;

(b)   failing to respond to an application for information within the time  limits established under this Act;

(c)    failing to provide notice in writing of its response to a request for information in accordance with this Act;

(d)   charging an excessive fee;

(e)    failing to communicate information in the form requested for without any

justifiable reason.

 

(2)     An appeal shall lie to the Commission

 

(a)    in the case of the office of the President, the Vice President and the Cabinet, after the Secretary to any of these institutions dismisses an application by the issue of a signed certificate in accordance with section…..

(b)   in the case of any other public agency, where the Internal Review Information Officer dismisses an application for internal review;

(c)    in the case of a private agency, where the agency refuses to grant application for disclosure of information.

 

(3)     An appeal to the Commission shall be lodged at the Commissionsixty days after the decision appealed. 

 

Decision on Appeal or Complaint

 

(1)     The Commissioner shall, subject to sub-section (2), decide an application made under section… as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body/agency an opportunity to provide their views in writing.

 

(2)     The Commissioner may summarily reject applications: –

(a)    which are frivolous, vexatious or clearly unwarranted; or

(b)   where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public or private body.

 

(3)     In any application under this section, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under this Act.

 

(4)     In enquiring into any complaint or appeal before it, the Commission shall have  power similar to the High Court in respect of the following matters;

 

(a)    summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath or affirmation to produce the relevant documents or things;

(b)   requiring discovery and inspection of documents or things;

(c)    receiving evidence on affidavit;

(d)   requisitioning any public record or copies thereof from any office;

(e)    any other matter which may be prescribed.

 

(5)     The Commission may, during investigation pursuant to sub-section (4), examine any record to which this Act applies, and no such record shall be withheld from the Commission on any grounds. 

 

(6)     Where necessary as a result of the confidentiality of the record in issue, the Commission may sit in camera.

 

(7)     In its decision pursuant to sub-section (1), the Commissioner may: –

 

(a)    reject the application;

(b)   require the public or private body/agency to take such steps as may be necessary to bring it into compliance with its obligations under this Act;

(c)    require the public or private body/agency to compensate the complainant for any loss or other detriment suffered; and/or

(d)   in cases of egregious or willful failure to comply with an obligation under this Act, impose a fine on the public or private body/agency not exceeding ….penalty points.

 

(cool.gif     The Commission shall serve notice of its decision, including any rights of appeal, on both the complainant and the public or private body/agency.

 

Appeal from the Commission Decisions and Orders

 

(1)     The complainant or the relevant public or private body/agency may, within 45 days, appeal to the Supreme Court for a full review of a decision of the Commission pursuant to sections … or…, or an order pursuant to section….

(2)     In any appeal from a decision pursuant to section .., the burden of proof shall be on the public or private body/agency to show that it acted in accordance with its obligations under section …….

 

Binding Nature of Commissioner’s Decisions and Orders

Upon expiry of the 45-day period for appeals to the Supreme Court pursuant to section …, the Commission shall certify in writing to the court any failure to comply with a decision pursuant to section …… or an order pursuant to section  and the court shall consider such failure under the rules relating to contempt of court

 

I.       Other Staff of the Commission

The Commission shall appoint such other officers and employees as are reasonably necessary for the effective performance of its functions, including, persons with the requisite qualifications in record creation, maintenance and retrieval, in law, investigations and having knowledge and expertise in implementation of the provisions of this Act.

 

J.      Funds of the Commission

The administrative expenses of the Information Commission, including the salaries, allowances and pensions payable to or in respect of persons serving with the Commission shall be charged on the Consolidated Fund andParliament shall appropriate the budget presented by the Commission annually upon its presentation.

 

K.    Protection of the Commission

 

(1)     No criminal or civil proceedings shall lie against the Commission or against any person acting on behalf of or under the direction of the Commission, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Act.

 

(2)     For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice or in bad faith.

[Drawn from Article 19 Model Law]

 

(3)     Personnel who disclose wrongdoing within the Commission shall not be subject to any detriment in the course of their employment by reason of the disclosure.

[Drawn from the AU Model Law]

 

L.     Code of conduct

 

(1)     The Commission shall develop its own code of conduct after consultation with the Minister for Justice and the general public.

(2)     The Commission may after consultation with the Minister of Justice and the public, review such code of conduct from time to time.

(3)     Any code of conduct issued by the Commission or amended after review by the Commission shall be made public within 30 days of its confirmation.

[Drawn from the AU Model and the Mexico FOI law]

 

M.   Engagement of experts

 

(1)     The Commission may, whenever it deems appropriate, convene a panel of specialist experts or obtain the cooperation of any body for the purposes of decision making, issuing recommendations or other work undertaken under this Act.

(2)     The terms of engagement of such temporary services are to be determined by the Commission.

(3)     Any panel of experts convened must include representation from appropriate civil society organizations.

 

N.    Regulation of procedure

(1)     Subject to this Act, the Commission, in consultation with the Minister for Justice shall determine the procedure to be followed in the exercise of any power, the performance of any duty or function of the Commission under this Act.

(2)     The Commission may, from time to time, after public consultation, review the procedure referred to in subsection (1).

 

LIMITATION OF PERIOD OF EXEMPT INFORMATION

 

Commentary: Refer to Section 57 in the current Bill. Subsection (1) should be retained while sub-section (2) should be amended. The section should read as follows:

 

(1)     Information classified as exempt information under sections … to … in respect of public bodies/agencies ceases to be exempt information on the expiry of twenty-five years calculated from the end of the calendar year in which the information into came existence.

 

(2)     On the expiry of the period specified in subsection (1), a person may seek access to the information and the public body/agency which has custody of the information shall give access in accordance with the procedure established under this Act, provided however that where disclosure of the information will endanger the life or physical safety of an individual, the information shall not be disclosed. 

 

CHIEFTAINCY INSTITUTION

 

Commentary: The Chieftaincy institution is a political institution, and thus a public body and not a private body.  Furthermore, Article 36(cool.gif of the Constitution expressly provides stools and skins are accountable as fiduciaries to their people as follows:

 

“36 (cool.gif The State shall recognize the managers of public stool and family lands as fiduciaries charged with the obligation to discharge functions for the benefit of the people of Ghana, of the stool, skin or family concerned and are accountable as fiduciaries”.

 

Accordingly, we propose that stools and skins should be accountable for the income they receive from the management and or use of stool lands and from public donations and grants to stools and skins for the development of their communities.

 

We accordingly propose the following new section:

 

(1)     Every member of a stool or skin shall have the right of access to information  from his/her stool or skin in respect of income or other resources received from the management, alienation or use of stool land  and for donations made to the stool or skin for the development of the community which the stool or skin represents.

 

(2)     The National House of Chiefs shall in consultation with the Commission established under this Act make regulations and established procedures which every stool and skin shall comply with in granting access to information to members of their community on the use of resources derived from the management and use of stool lands and monies and other resources donated to stools and skins for the development of their communities.

 

 

OTHER ISSUES THAT DEMAND THE ATTENTION OF THE SELECT JOINT COMMITTEE

 

In addition to the issues identified for the zero draft, we believe there are certain provisions of the current text which though are not the specific subject of this zero draft, ought in our respectful view, to be improved upon, or where there are omissions filled in order that the full objects of the right to information may be secured to the people and our Republic.  With respect we proceed to consider them.

 

TIMELINES FOR DISCLOSURE OF INFORMATION

 

Commentary: This issue has been a question of widespread concern among the stakeholders and was in particular a major subject of critical comment during the nation-wide consultation of the Parliamentary Select Joint Committee.  Unfortunately however, it seems to have escaped the review meeting as one of the critical issues that ought to be flagged for further consideration.   This is because the timely disclosure of information is fundamental to the efficacy of any right to information legislation.  Regrettably the time-lines for disclosure under the current Bill are unduly long and are likely to have the direct effect of undermining this right.  Currently, by virtue of the combined effect sections 23(1) and 26 (1) of the Bill, it may take 151 days, that is, over five months, for an application for information to be granted.  And yet this would be perfectly lawful!  Neighbouring Nigeria’s FOI law provides for 7 days for responding to applications with an extension of a further 7days.   Liberia, which just recently emerged from a brutal civil war provides in its Freedom of Information Act, a maximum period of 30 days for every public and private body to respond to an application provided that this period may be extended only once upon showing reasonable cause.  We are therefore, with respect, taking this opportunity flag the question of timelines for the critical consideration of the Select Committee.

 

We propose the following:

 

Section 23 (1) be amended as follows;

(1)     Where an application for access is received by an agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

Section 23 (3) be retained.

 

Section 26 (2) be amended as follows:

(2)     The period of extension shall not exceed twenty-one days from the date when a decision on the application should have been made.

 

Commentary: In any event there is no justification for a further extension by the Minister in charge of the agency by a total of three months under section 26 (1) and that part should definitely be deleted.

 

LONG TITLE OF THE ACT

 

We propose that the long title of the Act be amended as follows:

 

“An Act to provide for the implementation of the right to information held by public  and private agencies/bodies, subject to exemptions that are necessary and consistent with the protection of the public interest and the rights of the individual in a democratic society; to foster a culture of transparency and accountability in public affairs, to contain corruption, promote popular participation in governance, to place obligation on public and private agencies/bodies to provide information proactively and in response to a formal request in a timely, inexpensive and reasonable manner and to provide for related matters”..   

 

RIGHT OF ACCESS TO INFORMATION

 

We propose the following amendment of section 1in the current Bill.

 

(1)     Every person shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society. 

 

Commentary: This is a direct reproduction of the constitutional guarantee of the right to information.  We propose that the text begins with an affirmation of the specific text of Article 21 (1) (f).

 

(2)     Subject to the Constitution and the provisions of this Act, every person shall have the right of access to information or part of the information in the custody or under the control of a public body/agency or a private body/agency subject to this Act.

 

(3)     The exercise of the right under subsection (2) is subject to the exemptions specified in sections … to ….

 

Commentary: Note that we have combined some of the exemptions into one section and so the numbering will change if our proposal is considered acceptable.

 

(4)     Nothing in this Act is intended to prevent or discourage public or private bodies/agencies from publishing or disseminating and giving access to information, (including information exempt under the provisions of this Act) where they can properly do so or are required by law to do so.  [Drawn from the Draft Model Law for AU Member States] 

 

Commentary: This is to ensure that notwithstanding the general provisions on exempt information under the RTI law, where some specific law requires disclosure or where a public agency can properly and lawfully disclose information, the provisions on exempt information do not become a barrier to disclosure.

 

DUTY ON RECORD-KEEPING BY PUBLIC AND PRIVATE BODIES/AGENCIES

 

We propose a new section which underscores the fundamental obligation of public and private bodies under this Act to create and keep records thus:

 

“Every public or private body subject to this Act shall have the obligation to create, maintain and preserve any information it generates or which comes into its custody in a manner that facilitates easy retrieval and access in accordance with guidelines of the Commission”.

 

GUIDE ON HOW TO USE THE ACT

 

We propose insertion of a new section before section 3 of the current Bill on the need for the Information Commission to publish and disseminate a guide on how to use the Act.

 

(1)     The Information Commission established under section … of this Act shall within eighteen (1cool.gif months after the commencement of this Act compile and disseminate in English, and other Ghanaian languages, and in a simple and user-friendly form, a guide as to how to use this Act.

 

(2)     The guide must, without limiting the generality of subsection (1), include a description of:

(a)    the objects of this Act;

(b)   the postal and street address, phone and fax number and, if available, the electronic mail address of:

(i)            the information officer of every public or private body/agency; and

(ii)          every deputy information officer of every public body/agency appointed under this Act; and

(iii)        the website of the public or private body/agency;

 

(c)    such particulars of every public or private body as are practicable;

(d)   the manner and form of an application  for:

(i)       access to a record of a public body contemplated in section …; and

(ii)     access to a record of a private body contemplated in section …

 

(e)    the assistance available from the information officer of a public or private body/agency in terms of this Act;

(f)    the assistance available from the Commission in terms of this Act;

(g)   all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

(i)       an internal review; and

(ii)     an application to the Commission against an Internal Information Review Officer of a public body/agency or an information officer of a private body/agency;

 

(h)   the provisions of sections 3 (current) and …  requiring a public body/agency and private body/agency, respectively, to compile a manual, and how to obtain access to a manual;

(i)     fees to be paid in relation to requests for access; and               

(j)     the regulations made in terms of section 64 of the current Bill.

 

(3)     The Information Commission must, if necessary, update and publish the guide at intervals of not more than two years.

 

PROACTIVE DISCLOSURE

 

We propose that the current section 3 of the Bill which places on the responsible Minister the obligation to publish a manual listing the agencies under the Ministry and which specifies the list of facts and matters to be disclosed in the Manual to published by every Minister should be amended as follows:

 

(1)     The Minister responsible for a public body/agency shall, within twelve months from the date of coming into force of this Act, and every twelve months after that date, compile and publish, after consultations with the Information Commission established under this Act, the Public Services Commission and the Head of Civil Service, and in accordance with the guidelines issued by the Information Commission under section ….., an up-to-date official information compilation in the form of a manual, listing the public bodies/agencies that are under the Ministry.

 

(2)     The manual shall contain:

 

(a)    a description of the organizational structure and functions of each body/agency, including details of the responsibility of each division or branch of each public body/agency;

(b)   the names salaries and dates of employment of all employees and officers of the public body/agency;

(c)    the channels of supervision and accountability in a decision-making process;

(d)   the norms set by the public body/agency for the discharge of its functions;

(e)    the budgets allocated to each public body/agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made;

(f)    particulars of recipients of concessions, permits, grants, licences, contracts, authorization granted by the public body/agency;

(g)   a list of materials containing information relating to any grant or contract made by or between the public body/agency and another public/body agency or private body/agency;

(h)   a list of the type of information that may be purchased or inspected free of charge or subject to a fee and fee payable in respect of an access to information specified by the Commission under section …..

(i)     the name, telephone number, fax, e-mail and postal address of the information officer of the agency or designated officer or deputies thereof, where necessary, of the public body/ agency to whom a request for access maybe made;

(j)     the place in the agency where information is available under this Act or any other enactment, can be found or made available, including its website, if any;

(k)   the arrangements made and procedures established in the agency that will enable members of the public participate in the formulation of the policies of the agency;

(l)     the policies and decisions of the agency and the reasons for the policies;

(m)the arrangements made or procedures established by the agency to enable a member of the public seek amendment of the member’s official record with the agency.

[We have been guided by provisions of the Ghana Bill, the South African, Nigerian, and Liberian FOI laws, AU Draft Model law and Article 19 Model Law]

                                                        

GENERAL AND MISCELLANEOUS PROVISIONS

 

A.    Deemed refusal

 

We also propose a new section on ‘Deemed Refusal’ to be inserted before section 27 of the current Bill.

 

Deemed Refusal – General and miscellaneous provisions affecting public and private bodies/agencies under this Act

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…within the extended period of time, the information officer shall be deemed to have refused the application.

 [Drawn from the AU Model law]                

 

 

B.     Duty of every public and private body/agency to publish and disseminate manual

 

Commentary: In the spirit of proactive disclosure, every public and private body/agency should have a duty to publish and disseminate its manual. We propose that a section on this duty is included under the General and Miscellaneous part of the Bill as follows:

 

Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

 

(a)    a description of its structure, functions, duties and finances;

(b)   relevant details concerning any services it provides directly to members of the public;

(c)    any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

(d)   a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a  request for information;

(e)    a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

(f)    any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

(g)   the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

(h)   any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.

 

“publish” means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination.

[Add to the definition section]

 

 

C.    Primacy of the Act

 

We propose that section 66 in the current Bill should be designated:

 

“Primacy of Act and Modification of Existing Enactments”

 

[This is drawn from the AU Model Draft law]

 

We also propose further that instead of the text of the current clause 66, we substitute a new clause as follows;

 

(1)     This Act applies to the exclusion of any provision in any other legislation or regulation that prohibits or restricts the disclosure of informationof a public body/agency or a private body/agency.

 

(2)     Nothing in this Act shall limit or otherwise restrict any other legislative requirement, policy or established practice for a public agency or a private agencyto disclose information.

 

Commentary: This provision is common to right to information legislation.  The purpose is to ensure that where a specific law mandates the disclosure of information that might otherwise be exempt under the general provisions of this Act, the specific provision for disclosure is complied with. [Drawn from the AU Model Draft law and Article XIX Model Law]

 

Training of Officials

 

We propose to add a new provision as follows under the General and miscellaneous part.

 

“Every public and private body/agency subject to this Act shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act”. [Drawn from Article XIX Model Law]

 

 

TRANSITIONAL PROVISIONS

 

(1)     Every public or private body/agency subject to this Act shall designate information officers and deputy information officers, where necessary, train and equip them with the necessary resources and expertise within …. months after this Act comes into effect and they shall start functioning within a further ….months.

 

(2)     Every public or private body/ agency shall establish effective systems of record creation, maintenance, preservation and retrieval to facilitate the object of this Act and shall complete the organization of their archives within the first … month of the coming into effect of this Act.

 

(3)     The nomination of the first ….Commissioners shall take place not later than …. months after the law come into effect.  Two/three of the Commissioners shall end their tenure in …years and they may be re-appointed for an additional term, of …years.

 

(4)     Individuals may present applications for access to information or access to and correction of personal information one year after this Act comes into effect.                                                                                     

 

(5)     As soon as possible but in any event within eighteen months of the coming into effect of this Act, all public bodies/agencies and private bodies/agencies shall be required to prepare information manuals to be deposited with the Commission and in the designated places within the public and private bodies/agencies and also on their websites, if any, in conformity with sections … and …. of this Act..

 

(6)     The provisions of this act will become fully operational............months after the coming into effect/ passage into law of this Act.

 

(7)     For purposes of the current section 23, for a period of twelve months from the time the provisions of this Act becomes fully operational every reference to fourteen working days or fourteen days shall be construed to mean thirty days and every reference to twenty-one days shall be construed as forty-two days                         

 

(cool.gif      The Attorney General, in consultation with the Information Commission, shall, within eighteen months of the coming into effect of this Act, review all laws restricting access to information, including the State Secrets Act, 1962 (Act 101), the Civil Service Act, 1993 (PNDCL 327) and the regulations pursuant thereto

 

 

and the Oaths Act1972 (NRCD 6), to bring them into conformity with the provisions of the Constitution and this Act.

 

SCHEDULE

Form of oath or affirmation to be made by Commissioners (Section …..)

 

I, ………:………. …..having been appointed the Chairman of the Information Commission/ a member of the Information Commission do  (in the name of the Almighty God) (solemnly affirm that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitutions and the laws of the Republic of Ghana.  (So help me God).

 

To be sworn before the president, the Chief Justice or such other person as the Chief Justice may designate.

 

 

 

Akoto Ampaw

6th May 2012

Accra

 

 




The Coalition

An Option Paper on RTI Bill!

Posted by admin on 2012-07-18 16:17:58 UTC

 

THE GHANA RIGHT TO INFORMATION BILL, 2010

AN OPTION PAPER/ZERO DRAFT

 

Introduction

The Ghana Right to Information Bill, 2010 seeks to provide for the implementation of the Right to Information guaranteed under Article 21(1)(f) of the Constitution of the Republic of Ghana, 1993. The Bill was tabled before Parliament on February 5, 2010 and it was specifically allocated to the Parliamentary Select Joint Committees on Communications; and Constitutional, Legal and Parliamentary Affairs to scrutinize and come up with recommendations. The Joint Committees held public consultations on the Bill between July and August 2011 in which they gathered various views on the content of the Bill. In March 2012, the Joint Committee held a review meeting at which it was decided that certain key issues within the Bill needed to be re-visited or improved upon in order to bring the Bill in conformity with international human rights standards and best practices on the right to information. It is in respect of this decision that we were requested to produce a zero draft with regard to the following specific areas/issues identified by the Joint Committee.

 

               i.          Exemptions

             ii.          Private bodies

           iii.          An Independent Information Commission

           iv.          Fees

             v.          Accountability measures for collecting and managing internally generated funds

           vi.          Appeal process; and

         vii.          Declassification of information.

Sources

In producing this zero draft, we have taken into account the reputation of Ghana as a beacon of democracy in Africa and the fact that many African countries look to Ghana for good example to emulate.  A Ghana Right to Information Law is thus most likely to be a reference source for other African countries struggling to build democratic institutions of governance and a culture of democracy. We have also taken into account the fundamental principles underpinning any genuine and effective right to information legislation which include, transparency, openness, effective participation of the population in the processes of governance, accountability and the curtailment of rank corruption, the promotion of social justice and the delivery of social services through the role the right to information plays in giving expression to other rights. Then have been the views expressed by Ghanaians across the length and breadth of the country during the nation-wide consultations held by the Parliamentary Select Joint Committee. We have also considered the following documents as a guide to the zero draft.

 

a)         The Commentary of the Coalition on the Right to Information, Ghana.

b)        The Model Draft Law for AU Member States on Access to Information prepared under the auspices of the Special Rapporteur on Freedom of Expression and Access to Information.

c)         The Declaration of Principles on Freedom of Expression in Africa by the African Commission on Human and Peoples’ Rights.

d)        The Public Right to Know Principles of Article X1X

e)         A Model Freedom of Information Law by Article XIX, endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression,

f)         The Freedom of Information Act of the Republic of Liberia, 2010.

g)        The Freedom of Information Act of the Federal Republic of Nigeria, 2011.

h)        The Promotion for Access to Information Act of the Republic of South Africa, 2000.

i)          The India Right to Information Act, 2002.

j)          The UK Freedom of Information Act, 2000.

k)        The Mexican Federal Transparency and Access to Public Government Information Law, 2002.

 

PROPOSED AMENDMENTS TO THE GHANA RIGHT TO INFORMATION BILL- ZERO DRAFT

 

GENERAL EXEMPTIONS

 

A.    Refusal

A public or private body/agency may refuse to grant access to informationonly if the information falls within an exemption provided for in this Act.[Drawn from the AU Draft Model Law]

 

B.     Public interest override

(1)     Notwithstanding any of the provisions of this Act on exemptions, information is not exempt and the information officer must grant a request for access to information if the disclosure of the informationwill reveal or reveals evidence of:

 

(a)    a contravention of, or failure to comply with a law; or

(b)    an imminent and serious risk to public safety, public health or the environment;

(c)    miscarriage of justice;

(d)   abuse of authority or neglect in the performance of official function

(e)    abuse of  authority or neglect in the performance an official duty or

(f)    other legitimate public interest so requires

 

and the benefits of disclosure outweigh the harm or danger that could occur in the event of disclosure

 

Commentary:We have reviewed slightly the original section 18 by including ‘information that ‘will reveal’and also a general ‘legitimate public interest consideration’. This with respect is consistent with international best practice and human right norms that subjects exemptions to a general public interest override. Currently, section 18 subjects exceptions only to the specific instances mentioned in sub-clauses (a) to (e).  As is well established in the law, public interest is not a closed category and the danger of a limited public interest override clause is that it may omit an unanticipated situation where the public interest requires that the exemption give way to disclosure.

 

(2)     An information officer must consider whether subsection (1) applies in relation to any information requested before refusing access on the basis of the          information being exempt under the provisions of this Act. [Drawn from the AU Draft Model law]

 

C.    Classified Information

(1)     The fact that any information in the custody of a public body/agency is kept by that body/agency under security classification or is a classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public body/agency to which the application is made shall decide whether such information is of a type referred to as exempt information under this Act

 

(2)     If the public body/agency to which the application in subsection (1) is made decides that such information is not a type mentioned in the sections referred to in subsection (1), access to such information shall be given to the applicant, notwithstanding its categorization as classified security information.

[Drawn from the AU Draft Model law]

 

Commentary: Sometimes, attempts are made to overreach the provisions of a right to information legislation by the simple sleuth of hand of classification as “top secret’, for your eyes only’, ‘highly confidential’ etc.  What this provision does is to ensure that officials do not by mere form of classification pre-empt the need to show whether the information fails within the categories of exemption specified in this Act.

 

D.    Information already available to the public

Notwithstanding any provision relating to exempt information, a body may not refuse to disclose information where the information is already publicly available.

 

We propose all the above should precede section 6 and other provisions on exemptions so that the current impression that the Act is more about exemptions than the right to, and obligation to disclose, information is avoided.  These provisions preceding the exempt provisions will thus give the positive emphasize that the law is about the right to information and not otherwise. The sections will accordingly be renumbered.

 

E.     Information from the office of the President, the Vice-President and the Cabinet

(1)     Information is exempt from disclosure:

 

(a)      if it is for submission or has been submitted to the office of the President or of the Vice-President or to the Cabinet; or

(b)       if it contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendation, minutes or consultations made or given to the President, the Vice-President  or Cabinet

and disclosure would or is likely:

 

(i)     to cause material prejudice to the effective formulation or development of government policy;

(ii)   seriously to frustrate the success of a policy, by premature disclosure of that policy;

(iii)significantly to undermine the deliberative process in the office of the President, Vice-President or the Cabinet by inhibiting the free and frank provision of advice or exchange of views;

(iv)to cause material prejudice to national security.[Addition to comply with the harm test]

 

(2)     Where information requested is exempt by reason of any of the grounds/provisions set out in sub-section (1), the Secretary to the President or the Secretary to the Vice president or the Secretary to the Cabinet or the National Security Coordinator shall state so by a signed certificate giving reason why it is exempt and, subject to the right of appeal to the Information Commission under section …., such certificate shall be conclusive evidence that the information is exempt..

 

(3)     Information which contains factual or statistical data and does not disclose information concerning a decision, deliberation or discussion of the office of the President, the Vice President or of the Cabinet is not exempt information.

 

(4)     This section does not prevent the President, the Vice President or the Cabinet from publishing or granting access to information that is otherwise exempt.

 

(5)     For purposes of this section, a reference to Cabinet includes a reference to a committee or sub-committee of the Cabinet.

 

Commentary:

(a)      We have combined Clauses 5 and 6 of the Bill into one section.

(b)     We have been guided by the provisions of the Draft Model Law for AU Member States and also Article XIX’s Model Freedom of Information Law as well as international best practice that disapproves of blanket exemptions, which are not subject to any harm test as contravening the right to information.

(c)      We have also replaced the phrase ‘Head of National Security’ with National Security Coordinator, as no such office as the ‘Head of National Security’ exists under the Security and Intelligence Agencies Act, 1996 (Act 526).  The office that is established under that Act is the National Security Coordinator.

 

F.     Information relating to law enforcement, public safety and the protection of property

 

Commentary: Refer to current Section 7 in the Bill. We have removed national security from the sub-heading as that is dealt with by combining section 7(3) with section 9 as a separate section.

 

(1)     Information is exempt from disclosure if it contains matters which if disclosed would or can reasonably be expected to:

 

(a)    materiallyprejudice the prevention, detection or curtailment of a contravention or possible contravention of a law;

(b)   materially prejudice the investigation of a contravention or possible contravention of a law;

(c)    materiallyprejudice the plan or manner of use of investigation techniques and procedures in law enforcement;

 

Commentary: We have introduced the adverb ‘materially’ and replaced ‘interfere’, which is overly broad with ’prejudice’, which is more concrete.

 

(d)   to disclose the identity of a confidential source of information, matter or the information given by a confidential source in respect of law enforcement;

 

Commentary: We note that sub-clauses (b), (c) and (d) in fact entail no more than an elaboration of sub-clause (a) and are in that sense repetitive. They simply add to the undesirable impression of a long list of exemptions. They may therefore be deleted as superfluous.

 

(e)    materiallyprejudice the prosecution of an offender;

 

Commentary: We have substituted ‘offender for ‘offence’, we believe this is a drafting error.

 

(f)    endanger the life or physical safety of a person;

(g)   prejudice the fair trial of a person or the impartial adjudication of a case;

(h)   materially interfere with the maintenance or enforcement of a lawful method or procedure for protecting the safety of the public;

(i)     endanger the security of a building, structure or means of transport or system, including computer and communications systems for which  security is reasonably required;

(j)     prejudice the security of a prison or place for lawful detention;

(k)   prejudice a system or procedure for witness protection or any other procedure for the protection of persons or property where the protection is required

 

(2) Information shall not be withheld: 

 

Refer to Section 7 (2) of the current Bill:

We propose here substituting for the passive words ‘Information is not exempt from disclosure’ the active words ‘Information shall not be withheld’. We do not propose any changes to the rest of the section 7 (2).

 

G.    Information that affects the security of the State and the defence of the country

 

Commentary: Section 7(3) should be combined with section 9 as they both deal with matters of security and defence of the country as follows:

“Information that affects the security of the State and the defence of the country”

 

(3)     Information created by or in the custody of the Armed Forces or the security and intelligence agencies established under the Security and Intelligence Agencies Act, 1996 (Act 526) which relate to the security of the State is exempt information if disclosure will prejudice the security of the state.

 

Commentary: This replaces the current section 7(3) which provides for blanket exemption of every piece of information, without distinction, in the custody or created by these bodies even where their disclosure may not cause any harm by subjecting the exemption to a legitimate harm test.

 

(4)     Information is exempt if its disclosure can reasonably be expected

(a)    to damage or prejudice the defence of the State or a foreign state allied to or friendly with the State; or

(b)   to be prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.

 

Commentary: We think the sub-clause (b) is not necessary as it is simply an elaboration of section 7(1) (a)

 

H.    Economic and any other interests

 

Commentary: Refer to Section 10 in the current Bill. We suggest that the provisions of section 10 be maintained except section 10 (c), which is couched in extremely broad and vague terms and can be used by public officials to deny otherwise legitimate requests for information. 

 

We accordingly propose that either section 10(c) be deleted altogether or be reformulated thus:

 

(c)  if the disclosure can reasonably be expected to cause serious disruption of business and trade in the country.

 

Section 10 (f) be expanded as follows:

 

(f)  it contains questions to be used in academic or professional examination or recruitment or selection process if the release is likely to jeopardize the integrity of that examination or recruitment or selection process. [Addition highlighted]

 

I.       Economic interests of third parties.

 

Commentary: Refer to section 11 in the current Bill. We only propose that changes be made to section 11(1) of the current Bill. The terms ‘expressly or impliedly’ should be deleted from the section 11(1) so that the section reads thus:

 

(1)     Information which would reveal a trade secret, research, scientific, technical, commercial, financial or labour related information of a private body or which is supplied in confidence is exempt information if the disclosure can reasonably be expected:

(a)   retain current section 11(1) (a);

(b)   retain current section 11(1) (b);

(c)    to result in similar information not being supplied to the public or private body, where it is in the public interest or the legitimate interest of the private body that such information continues to be supplied. 

 

Commentary: We propose that this should replace the original sub-clause (c)] to deal with both public bodies/agencies or private bodies/agencies and also correct infelicitous language.

 

J.      Information relating to tax

 

Commentary: Retain current text.

 

 

K.    Internal working information of agencies

 

Commentary: Refer to Section 13 in the current Bill.

 

(1)     Information is exempt information which if disclosed would or would be likely to:

 

(a)    cause material prejudice to the effective formulation or development of policy by a public or private body/agency;

(b)   seriously frustrate the success of a policy, by premature disclosure of that policy;

(c)    significantly undermine the deliberative process in a public or private body/agency by inhibiting the free and frank provision of advice or exchange of views in the cause of or for the purpose of making a decision in a public or private body/agency;

(d)   significantly undermine the effectiveness of a testing or auditing procedure used by a public or private body/agency.

 

Commentary: The above section has been reformulated to take account of both public and private bodies/agencies.

 

(2)     Information is not exempt under sub- section (1):

 

(a)    if it merely contains material that has been publicly mentioned as forming the basis of a policy or formulating public policy;

(b)   if it contains only factual, technical and statistical data.

 

Commentary: Sections 14, 15 and 16 of the current Bill should be put under one section. The new section should read as follows:

 

(1)     Information is exempt information

 

(a)    if the information is privileged from production in legal proceedings under the Evidence Act 1975 (NRCD) as may be amended from time to time unless the person entitled to the privilege has waived it;

(b)   if its disclosure can reasonably be expected to constitute contempt of court or a quasi-judicial body.[Addition highlighted]

 

L.     Disclosure of personal matters

 

Commentary: Refer to section 17 in the current Bill. Retain the text of section 17 (1).

 

Amend the text of section 17 (2) thus:

 

(2)     Disclosure is unreasonable if it reveals or is likely to reveal information about the individual’s:

 

(a)    physical or mental health;

(b)   confidentialmarriage or employment record;

(c)    confidentialprofessional, commercial or financial affairs.

 

Commentary: Section 17 (2)(c) in the current Bill should be deleted since it is already catered for and protected under section 11.

 

Retain the whole of section 17 (3) and add the following as 17(3) (k)

(k)   it is about an individual’s physical or mental health or well being who is under the care of the applicant and who is:

 

(i)       under the age of 18 years; or

(ii)     incapable of understanding the nature of the request

and giving access would be in the individual’s best interest.

 

We propose that the sections on exemptions in their entirety be removed from where they currently are and are inserted after the current section 29, which deals with Manner of Access.  This will ensure that the Act, as a Right to Information Act, sets out the procedure and the grounds for access to information in the initial sections, and only after this should the exemptions follow.  We believe that this will enhance the impact of the Act as an access to information Act on anyone who reads it and make it user friendly.  Currently, the first impression one gets upon reading the Bill is that it is more about exemptions than access.  The South African, Indian, AU Model and Article XIX Model and Liberia and Mexican laws all follow this format.  And we respectfully urge the same on Honourable members

 

M.   Public interest override

 

Commentary: Section 18 has been removed and placed at the beginning of the provisions dealing with exemptions.  It has also been expanded to include a general public interest override.

 

 

ACCESS TO INFORMATION FROM PUBLIC AND PRIVATE BODIES

 

A.    Public body/agency (Definition)

A public body/agency for the purposes of this Act includes:

 

(a)    any body established under the Constitution;

(b)   a Ministry, governmental department, District Assembly, or a local authority; or

(c)    a statutory or any other body corporate or unincorporated or a public office, funded in whole or part from public funds or in which the Government has an interest or shares.

 

B.     Private body/agency (Definition)

A private body/agency for the purposes of this Act is a juristic person, which is not a public body as defined in this Act and which is wholly owned, controlled and financed by individuals or corporate bodies, not being public bodies and which:

 

(a)    carries out public function or statutory functions or provides public  services; or

(b)   exploits the natural resources of the country.

 

Commentary: We are proposing generally that instead of the term ‘government agency’ we substitute wherever the term appears the phrase   ‘public body/agency’.  This is because ‘government agency’ has, in our view, a rather limited reach as compared to ‘public body/agency’ which is intuitively broad enough in its everyday meaning to encompass the reach of public bodies.   Similarly the phrase ‘private body’ appears to be a simpler and more general term than private agency.  Finally, most right to information legislation use the phrase ‘public or private bodies’.   There appears in our respectful view, no compelling reason why the Ghana legislation should depart from this healthy tradition of right to information legislation. These definitions should be under the definition section in section 65 of the current Bill.

 

C.    Right of access to information in custody of private bodies/agencies

 

(1)     Every person shall have the right of access to information in the custody of a private body/agency, if:

 

(a)    the information sought is necessary for the protection of any right, including the right to the protection of the fundamental rights of the applicant or the right to the protection of any statutory and common law right; or

(b)   the information is necessary for the protection of broad social or public interests, such as public safety, public health, the environment or public funds.

 

(2)     A person shall disclose the right or public interest he or she seeks to protect where he or she applies for information from a private body/agency.

 

(3)     The exercise of the right in subsection ….is subject to the exemptions specified in sections…. to….

 

(4)     Where a private body/agency receives an application for access, part of which is exempt, the information officer or the head of the private agency as the case may be, shall disclose to the applicant as much of the information as can reasonably be separated without disclosing the exempt part.

 

The entire section above should come immediately after section 1 in the current Bill.

 

D.    Designation of information and deputy information officers

 

(1)     Every public or private body/agencymust designate an information officer and a deputy, where necessary, to enable the body/agency comply with the requirements of this Act.

 

(2)     If a private agency fails to designate an information officer, the head of the body will be the information officerfor the purposes of this Act.

 

(3)     A person appointed as an information officermust be competent to exercise the powers and perform the duties and functions of an information officer under this Act.

 

(4)     The information officerhas the powers, duties and functions that are conferred or imposed on the information officerby this Act.

 

(5)     A deputy information officermay exercise all the powers, duties and functions of an information officer.

 

(6)     Each person designated as a deputy information officerof a public or private agency shall be subject to the supervision of the information officerof that public or private agency in the performance of the powers, duties and functions under this Act.

 

This section on designation of information officers should follow immediately after preceding section on right of access to information.

 

E.     Compilation and publication of the manual of a private body/agency

 

Responsibility of head of private body in respect of access

(1)     The head of a private body/agency shall, within twelve months from the date of the coming into force of this Act, compile and publish in accordance with guidelines issued by the Information Commission an up-to-date manual containing:

 

(a)    the postal and street address, phone and fax number and, if available, electronic mail address of the and website of the private body/agency

(b)   a description of the guide referred to in this section, if available, and how to obtain access to it;

(c)    the latest information regarding the categories of information of the body/agency which are available without a person having to request access in terms of this Act and those available on request;

(d)   a description of the information of the agency which is available in accordance with any other legislation;

(e)    sufficient detail to facilitate an application for access to information of the body;

(f)    description of the subjects on which the body holds records and the categories of records held on each subject; and

(g)   such other information as may be prescribed by the Commission.

   

(2)     The head of a private body/agency must on a regular basis update the manual referred to in subsection (1).

 

(3)     Each manual must be made available as prescribed under the guidelines of the Commission.

 

(4)     For security, administrative or financial reasons, the Information Commission may, on request or of its own accord, by notice in the Gazette, exempt any private agency or category of private agencies from any provision of this section for such period as the Commission thinks fit.

 

The above section on ‘responsibility of the head of the private body/agency’ should follow section 3 in the current Bill.

 

Provision of guidelines for the manual

The Information Commission shall, in consultation with the Minister of Justice/Attorney General, provide guidelines for the preparation of the manual under section …..(Immediately above).

 

This section on ‘provision of guidelines for the manual’ should follow the section on ‘responsibility of the head of the private body/agency.

 

F.     Procedure for access to information of private bodies/agencies

 

(1)     An application for access to information held by a private body/agency shall:

 

(a)    be made in writing to the body/agency;

(b)   contain sufficient description or particulars to enable the information to be identified;

(c)    indicate the form and manner in which access is to be granted;

(d)   state the capacity of the applicant to the satisfaction of the officer to whom the application is made, if the application is made on behalf of another person;

(e)    state the address in the country (postal, street, fax  or e-mail) to which a communication or notice can be sent;

(f)    state the individual right or public interest sought to be protected by the information requested for   and provide an explanation of how the information is likely to protect the right or interest; and

(g)   include a statement that the application is for the protection of the life or liberty of a person and the basis for it, where the applicant is of the belief that the information is necessary to safeguard the life or liberty of a person.

 

(2)     Where an applicant is unable to make the application in writing due to illiteracy or a disability, the applicant shall make the request orally.

 

(3)     Where a request is made orally under subsection (2), the request shall be reduced into writing by the officer to whom the application is made who shall keep a copy of the written request as recorded and as duly authenticated by the applicant.

 

(4)     Where an application does not sufficiently describe the information required, the private body/agency to which the application is made shall so inform the applicant and offer the applicant the necessary assistance to identify the information.

 

Decision on application

 

(1)   Where an application for access is received by a private body/agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

(2)   The notice shall state:

(a)    whether or not access to the information will be given;

(b)   whether access to only a part of the information can be given and the reason for giving only a part ;

(c)    whether or not there has been a transfer to a subsidiary or holding company;

(d)   whether or not there is a deferred access under section ….

 

(3)   Where the information officer decides to give access, the notice shall state:

 

(a)     the period which shall not be more than fourteen days, within which the access can/will be given;

(b)    the form and manner in which access will be given;

(c)     whether access is to only part of the information because the other part is exempt

(d)    the day on which the body/agency expects he information to be published or submitted in the case of a deferred access under section …;

(e)     the fees to be paid by the applicant, if any

 

(4)   Where the body/agency decides to refuse access, the notice shall state:

 

(a)     the reason for the refusal;

(b)   the right of the applicant to seek redress by appealing to the Information Commission under section …… of this Act.

(c)    the name and rank of the officer who dealt with the application.

 

Extension of time to deal with application

 

The same as section 26 (1) in the current Bill, except that, we propose the deletion of the Minister’s discretion on application to extend the period for a further three months. [Please see our proposals on timelines below]

 

We propose a new section after section 26 thus:

 

Notwithstanding sections 23 (1) and (3) (a) and 26 (in the current Bill), where an application relates to informationwhich reasonably appears to be necessary to safeguard the life or liberty of a person, the information officermust within forty-eight hours or some such shorter period,

 

(a)    determine whether to grant the application;

(b) notify the applicant of the decision in writing; and

(c) if the application is granted, give the applicantaccess to the information.

 

Notwithstanding subsections (1), (3)(a) and the section on extension of time(above), where information requested contains third party information, an applicant may not be granted access to that informationuntil such time as any right of the third partyto appeal the release of the information has expired or any appeal lodged by the third party has been finally determined.

[Drawn from the AU Draft Model Law]

 

 

 

 

48 hour request refused

 

If upon reviewing an application, it does not appear to the information officer that the information requested reasonably appears to be necessary to safeguard the life or liberty of a person, the information officer shall within forty-eight hours of receipt of the application:

 

(a)    give notice of his decision, including adequate reasons for the decision, to the applicant;

(b)   inform the applicantthat, subject to the applicant‘s right to apply to the Information Commission for a review, the information officerwill make a decision regarding whether  to grant access to the requested informationwithin the time period specified in the combined effect of subsection (1) and (4), that is fourteen working days and a further fourteen days.

 

Information that cannot be found or not in existence

 

Retain section 24 of the current Bill.

 

Deemed refusal

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…,within the extended period of time, the information officer shall be deemed to have refused the application.

 

G.    Internal reviews and appeals from a decision of a public body/agency

 

Refer to section 38 in the current Bill.

 

(1)     Except a otherwise provided in this Act, a person aggrieved by a decision of the information officer of a public body/agency may submit an application for review of the decision to a senior officer specifically designated for that purpose by the Minister responsible for the body/agency to be known as the Internal Information Review Officer.

 

Commentary: Instead of vesting the Minister with the duty to review, the responsible Minister rather designates a senior official in the Ministry for this function.  This is because invariably, the minister would be too busy with other core functions of the Ministry to have time for internal reviews under the Act.

      

(2)     An application for review shall be:

 

(a)    in writing and addressed to the Internal Information Review Officer; and

 

Commentary: Subsection 2 (a) and (c) of section 38 in the current Bill have been combined.  We also propose that subsection (b) on payment of appeal fees be deleted as this could serve as a powerful disincentive and stifle the interest of citizens and other persons to challenge negative decision on their applications.

 

(b)   submitted within twenty-one working days after receipt of the notification of the decision sought to be reviewed, provided however that the Internal Information Review Officer may where it is just and fair extend the time within which to file an application for review.

 

(c)    Where the applicant is unable for whatever reason to write the review application, the information officer shall assist him in writing the application for review.

 

Action by the Internal Information Review Officer

 

Commentary: Refer to section 39 in the current Bill. Consistent with our proposal for replacing the Minister with the Internal Information Review Officer, we propose that every where there is a reference to the Minister in the part dealing with internal review, we substitute Internal Information Review Officer.

 

Beyond this, only a reformulation of subsection (3) of section 39 in the current Bill thus:

 

(3)     The Internal Information Review Officer shall conduct the review in camera only where the demands of confidentiality require that the review be so heard.

 

Commentary: This new formulation is in our view consistent with the fundamental principle of openness and transparency which underpins any genuine right to information legal regime.  Holding review proceedings in camera as a matter of course only reinforces the culture of secrecy that the RTI law seeks to transform.  This is especially the case as subsection (4) provides against disclosing any information which is exempt during review proceedings.  However, provision is made to cater for situations where there is a legitimate need for proceeding of the internal review be held in camera.

 

Decision of Internal Information Review Officer

 

Refer to section 40 in the current Bill.

 

(1)     The Internal Information Review officer shall notify the applicant of his decision on the application within twenty-one working days of receipt of the application for a review.

 

Commentary: The phrase ‘if there is no delay or other default on the applicant’, in the current text of the Bill, has been deleted so that the law can be seen as a way of encouraging review and dealing with the applications on their merit.

 

(2)     The notice shall state:

 

(a)    the reason for the decision and the provision of the Act relied on; and

(b)   where the review is dismissed that the applicant may file an appeal to the  Commission established under section …. of this Act.

 

Commentary: We propose here the Independent information Commission instead of an Appeals Commission.  We are also of the considered view that provision of section 40 (2) of the current Bill which provides that where the review is dismissed, the applicant’s recourse is to file a application for judicial review in the Supreme Court is seriously restrictive and will tend in practice to stultify the right of judicial review in our courts.  This is so because in every situation that the review application is dismissed because the information requested for is adjudged exempt information, it would be because of national security or other public interest considerations.  This will mean that in every situation where a review is unsuccessful, the applicant’s only recourse is to the Supreme Court.  Most Ghanaians would not have the money, determination, nor resources to apply for judicial review to the Supreme Court.  The result is that many Ghanaians would be denied the opportunity to assert their right to information.  What is more, Article 135 (1) and (2) of the Constitution that this section purports to rely upon does not require that appeals against the decision of the internal review process should be lodged in the Supreme Court.  Were this to be the case, there would be no need for internal review in the first place, as any dispute over exempt information,  would, by this interpretation of Article 135 (1) and (2), be referred to the Supreme Court for judicial review. Fortunately, this reading of Article 135 is with respect not correct.  Article 135 (1) and (2) deals with situations where disputes arise in court as to whether an official document should be produced in court because its production or disclosure of its contents will be prejudicial to the security of the State or injurious to the public interest.  Article 135 does not deal with where the dispute arises outside the context of court proceedings.   Thus, it would be constitutional where such a dispute arises at the internal review stage for the aggrieved applicant to appeal to the Information Commission for review.  It is only where the applicant or the public or private agency, as the case maybe, is aggrieved by the decision of the Information Commission that an application for judicial review should lie to the Supreme Court.  This way, the applicant who is aggrieved with the decision of the internal review process will, in the first instance, be afforded a ready, simple, not-costly or legalistic and independent forum to ventilate his grievance against a dismissal of his review application.

 

(3)     An applicant aggrieved with the decision of the Internal Information Review Officer may appeal to the Information Commission established under section … of this Act within sixty days of receipt of the decision.

 

H.    Appeals from the decision of an information officer of a private body/agency

 

An aggrieved applicant shall apply to the Information Commission established under section … of this Act against any decision of an information officer of a private body/agency within sixty days of receipt of the decision of the information officer.

 

Commentary: In the case of private bodies/agencies, we propose that there should be no internal review.

 

FEES

 

Commentary: We propose that the provisions on fees regime should be in one part, instead of being scattered in different parts of the Bill and in some instances appearing to be inconsistent with each other.  Some provisions suggest that it is the body/agency that determines the fees to be charged, while other provisions appear to vest in the Attorney-General the power of establishing a scale of fees for all public bodies/agencies. By bringing together provisions on fees under one part, the fees regime would become clearer to the ordinary person, the inconsistencies and tensions in the provisions will become apparent and be readily corrected.

 

Furthermore, in line with international best practice and human right norms, it is proposed that the fees should be limited to the actual cost of reproduction of the information requested for.  Costs should not be an impediment to the enjoyment of an essential fundamental human right such as the right to information and should not be permitted to deter applicants. This also means that the amount of time it takes an agency to search for, and retrieve information requested shall not be at the cost of the innocent applicant, who can hardly be held responsible for the poor system of record keeping, maintenance and retrieval of the body/agency concerned.

 

Finally, the requirements of advance deposits and application fees; and also the provision that where the application is rejected the applicant shall pay for the cost of dealing with application, should all be deleted.

 

The complex contradictory fees structure in the current Bill can be found in the following sections:

 

Section 19(1) (f) – an application shall be accompanied with the relevant fee.  What ‘the relevant fee is remains a mystery.

           

Section 23 (3) (e) – where the information officer decides to give access, the notice shall state the fee to be paid by the applicant.

 

Section 23 (4) (d) - Where the agency decides to refuse access, the notice shall state the fees payable for dealing with the application.

 

Part of section 23 (6) refusal on grounds of failure to pay deposit fee

 

Section 25 (1) – Where the costs of the agency for dealing with an application  are likely to exceed the amount of the application fee the agency may request  the applicant to pay a reasonable deposit determined by the agency.

 

25 (5) - An agency may refuse to give access to information if a fee or advance deposit payable is not paid within the period notified to the applicant.

 

Section 27 (1) – An agency may refuse to continue to process an application where the agency has by notice demanded payment of an advance deposit in relation to the application and the4 applicant has not paid the deposit within the period specified in the notice.

 

Section 50 (1) - An applicant seeking an access to information under this Act shall pay the fee or charge determined b the minister for justice;

 

Section 50 (2) - The Minister for justice shall specify by legislative instrument issue relevant guidelines to the agencies.

 

            Section 50 (3) – the guidelines shall specify the amount payable for

                       

(a)   A search for every hour or fraction of an horn of a manual search required in excess of two hours to locate the information;

(b)   The computer access and other costs incurred in locating, retrieving, processing and photocopying the information;

(c)    The cost of preparing the information for disclosure; and

(d)    postage cost

 

In pace of these different sections on fees we propose the following:

 

A.    Fees chargeable by public or private body/ agency

 

(1)     An applicant under this Act in respect of information held by a public  or private body/agency shall not be required to pay any fee:

 

(a)    on lodging an application for information;

(b)   in relation to time spent by a public or private body/agency  in searching for the information requested;

(c)    in relation to time spent by the public or private body/agencyin examining the informationto determine whether it contains exempt informationor deleting exempt informationfrom a document; or

(d)   in relation to time spent or costs incurred by the public or private body/ agencyin transcribing the information.

 

(2)     Subject to subsection (3), the public or private body/agencymay charge the applicant a reproduction feeconsisting of the reasonable reproduction costs incurred by the public body/agency and for sending the information to the applicant.

 

(3)     No reproduction feeshall be payable:

 

(a)    for reproduction of personal information of the applicant, or where the application is made on behalf of another person, the personal information of the person on whose behalf the applicationis made;

(b)   where the public agency/ bodyhas failed to comply with the time for responding to an applicationunder section … or where an extension of time has been made under section … within that extended period of time; or

(c)    where the applicant is an indigent.

[Drawn largely from the AU draft Model law as well as portions of the Mexican law and Indian RTI Act]

 

B.     Fees not part of the Consolidated Funds

 

(1)     The fees and charges received by a public body/agency under this Act shall, in accordance with Article 176 (2) (b) be retained by the body/agency in a specified account to be used to defray the expenses incurred by the body/agency in the performance of its functions under this Act and shall not form part of the Consolidated Fund.

 

(2)     The Minister for Justice shall, in consultation with the Information Commission, by legislative instrument, establish the accounting procedures for the management of these fees.

 

ESTABLISHMENT OF AN INDEPENDENT INFORMATION COMMISSION

 

A.    Establishment of an Information Commission

 

(1)     There is hereby established an I Information Commission, referred to in this Act as “the Commission”.

 

(2)     The Commission shall be a body corporate with perpetual succession and a common seal and may sue and be sue in its corporate name.

 

(3)     The Commission may for and in connection with the discharge of its functions purchase, hold, manage, or dispose of any movable or immovable property and may enter into such contracts and transaction as may be reasonably related to its functions.

 

B.     Functions of the Commission

 

The Commission shall:

 

(1)     be responsible for the promotion and effective implementation of the right to access of information under this Act and may for this purpose issue written guidelines and directives to all public and private bodies/agencies subject to the provisions of this Act;

(2)     monitor and report on compliance by all bodies/agencies subject to the provisions of this Act;

(3)     make recommendations for reform both of a general nature and directed at specific agencies;

(4)     carry out nation-wide public education and popularization of the provisions of this Act by disseminating or publicizing the requirements of this Act and the rights of the individual under it;  and to that end collaborate with the National Commission for Civic Education, the Commission for Human Rights and Administrative Justice and identifiable civil society stakeholders/organizations;

(5)     receive, inquire into and determine appeals/complaints from aggrieved applicants against the decision or other act of commission or omission of any body/agency subject to this Act;

(6)     conduct audit compliance with the provisions of the Act by private and public bodies/agencies;.

(7)     carry out investigations on its own initiative or upon receipt of an appeal or complaint from the public, into any matter  related to the enforcement of the provisions of this Act;

(cool.gif     submit before Parliament not later than the 30th June of each year an annual report of its activities and compliance by all agencies subject to this Act;

(9)     from time to time lay before Parliament such other reports as it deems appropriate and Parliament may debate the report and pass the resolution that it considers fit.;

(10)train information officers and such other relevant officers on their obligations and powers under this Act;

(11)refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences committed under this Act for investigation and prosecution;

(12)initiate research to be conducted into matters affecting the purposes of this Act;

(13)take such other appropriate measures as the Commission considers necessary to give effect to the provisions of this Act.

 

C.    Independence and autonomy of the Commission

 

(1)     Except as otherwise provided by the Constitution or by this Act, the Commission shall not be subject to the direction or control or any person or authority in the performance of its functions.

 

(2)     The Commission shall develop its own rules and procedures to regulate its affairs through a process of public consultation.

 

D.    Composition of the Commission

 

(1)     The Commission shall consist of five (5) or seven (7) members, one of whom shall be the chairperson who shall be appointed in the following manner:

 

(a)    The President shall issue a public call for nominations.

(b)   The nominations and interview process shall be transparent and include public participation.

(c)    The selection and appointment shall be completed within … months of the call for nominations.

(d)   The President shall appoint the Information Commissioners, including the chairman thereof upon the recommendation of a committee made up of:

 

(i)       One representative each from the majority and minority in Parliament;

(ii)     One representative from the Ghana Bar Association;

(iii)   One representative from Organised Labour;

(iv)    One representative from the Association on of Industries of Ghana and the Ghana Chamber of Commerce

(v)     One representative from the Ghana Journalists Association;

(vi)   One representative from the Network of Women’s Rights;

(vii)One Representative from the Christian Group (the National Catholic Secretariat, the Christian Council and the Pentecostal Council);

(viii)              One representative from the Federation of Muslim Councils and the Ahmadiyya Missions.

 

E.     Qualification of members of the Commission

 

(1)     The Information Commissioners shall:

(a)    be citizens of Ghana;

(b)   be fit and proper persons appropriately qualified for appointment;

(c)    be recognized human rights advocates;

(d)   be independent, impartial and accountable; and

(e)    have demonstrable knowledge in law, access to information, transparency, record-keeping and classification, and public and corporate governance.

 

(2)     A person shall not be qualified to be appointed an Information Commissioner if he/she:

 

(a)    has within the past five years held an office or is an employee of a political party or holds a political appointment in government or is a Member of Parliament;

(b)   has been convicted for high crime under the Constitution or high treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or for any offence punishable by death or by a sentence not less than ten years;

(c)    has been adjudged or otherwise declared bankrupt or insolvent under the laws of Ghana and has not been discharged;

(d)   is of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or

(e)    has a record of wrongful and deliberate destruction or falsification of official information.

 

F.     Tenure of office of members

 

(1)     An Information Commissioner shall hold full-time office on the Commission for a term of five years, subject to reappointment for one further term of four/five years.

 

(2)     An Information Commissioner must not be appointed for any further term after the expiry of the term of reappointment in subsection (1).

 

(3)     The President may appoint an Interim Information Commissioner for a period not exceeding six months in consultation with the Majority and Minority leaders of Parliament if:

 

(a)    any Information Commissioner is incapacitated, removed from office or resigns; or

(b)   in the period immediately after the tenure of an Information Commissioner has ended.

 

(4)     The President shall, subject to the approval of a two-third majority of Parliament, have the power to terminate the appointment of an Information Commissioner where:

 

(a)    the person is mentally or physically incapable of performing the functions and duties of the role;

(b)   the person is insolvent; or

(c)    stated misconduct has been established.

(d)   stated misconduct has been established.

 

(5)     During their term of office, an Information Commissioner and Interim Information Commissioner must not occupy or engage in any other activity, profession or trade outside their office for financial gain.

 

G.    Remuneration

 

(1)     The Chairperson shall receive a salary equivalent to that of a Justice of the Court of Appeal/Supreme Court.

 

(2)     The other Information Commissioners shall receive a salary equivalent to that of a Justice of the High Court/Court of Appeal.

 

(3)     The Chairperson and Information Commissioners shall receive reasonable travelling and living expenses incurred in the course of the conduct of their duties.

 

(4)     The Chairperson and Information Commissioners shall respectively be entitled to the equivalent pension benefits as that of the Justice of the Court of Appeal/Supreme Court and High Court/Court of Appeal respectively, provided that where any Commissioner already enjoys public pension the pension he or she already enjoys shall be deducted from his or her pension as a Commissioner.

 

(5)   Any other issues relating to the payment of salaries, expenses, pensions or compensation shall be guided by legislation relevant to these issues applicable within the public service and the judiciary of the Republic.

 

H.    Appeals or complaints to the Commission

 

(1)     A person who has made a request for information may apply to the Commission  for a decision that a public or private body/agency subject to this Act has failed to comply with any obligation placed on it in respect of applications for disclosure of information , including:

 

(a)    refusing to indicate whether or not it holds a record or to communicate information;

(b)   failing to respond to an application for information within the time  limits established under this Act;

(c)    failing to provide notice in writing of its response to a request for information in accordance with this Act;

(d)   charging an excessive fee;

(e)    failing to communicate information in the form requested for without any

justifiable reason.

 

(2)     An appeal shall lie to the Commission

 

(a)    in the case of the office of the President, the Vice President and the Cabinet, after the Secretary to any of these institutions dismisses an application by the issue of a signed certificate in accordance with section…..

(b)   in the case of any other public agency, where the Internal Review Information Officer dismisses an application for internal review;

(c)    in the case of a private agency, where the agency refuses to grant application for disclosure of information.

 

(3)     An appeal to the Commission shall be lodged at the Commissionsixty days after the decision appealed. 

 

Decision on Appeal or Complaint

 

(1)     The Commissioner shall, subject to sub-section (2), decide an application made under section… as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body/agency an opportunity to provide their views in writing.

 

(2)     The Commissioner may summarily reject applications: –

(a)    which are frivolous, vexatious or clearly unwarranted; or

(b)   where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public or private body.

 

(3)     In any application under this section, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under this Act.

 

(4)     In enquiring into any complaint or appeal before it, the Commission shall have  power similar to the High Court in respect of the following matters;

 

(a)    summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath or affirmation to produce the relevant documents or things;

(b)   requiring discovery and inspection of documents or things;

(c)    receiving evidence on affidavit;

(d)   requisitioning any public record or copies thereof from any office;

(e)    any other matter which may be prescribed.

 

(5)     The Commission may, during investigation pursuant to sub-section (4), examine any record to which this Act applies, and no such record shall be withheld from the Commission on any grounds. 

 

(6)     Where necessary as a result of the confidentiality of the record in issue, the Commission may sit in camera.

 

(7)     In its decision pursuant to sub-section (1), the Commissioner may: –

 

(a)    reject the application;

(b)   require the public or private body/agency to take such steps as may be necessary to bring it into compliance with its obligations under this Act;

(c)    require the public or private body/agency to compensate the complainant for any loss or other detriment suffered; and/or

(d)   in cases of egregious or willful failure to comply with an obligation under this Act, impose a fine on the public or private body/agency not exceeding ….penalty points.

 

(cool.gif     The Commission shall serve notice of its decision, including any rights of appeal, on both the complainant and the public or private body/agency.

 

Appeal from the Commission Decisions and Orders

 

(1)     The complainant or the relevant public or private body/agency may, within 45 days, appeal to the Supreme Court for a full review of a decision of the Commission pursuant to sections … or…, or an order pursuant to section….

(2)     In any appeal from a decision pursuant to section .., the burden of proof shall be on the public or private body/agency to show that it acted in accordance with its obligations under section …….

 

Binding Nature of Commissioner’s Decisions and Orders

Upon expiry of the 45-day period for appeals to the Supreme Court pursuant to section …, the Commission shall certify in writing to the court any failure to comply with a decision pursuant to section …… or an order pursuant to section  and the court shall consider such failure under the rules relating to contempt of court

 

I.       Other Staff of the Commission

The Commission shall appoint such other officers and employees as are reasonably necessary for the effective performance of its functions, including, persons with the requisite qualifications in record creation, maintenance and retrieval, in law, investigations and having knowledge and expertise in implementation of the provisions of this Act.

 

J.      Funds of the Commission

The administrative expenses of the Information Commission, including the salaries, allowances and pensions payable to or in respect of persons serving with the Commission shall be charged on the Consolidated Fund andParliament shall appropriate the budget presented by the Commission annually upon its presentation.

 

K.    Protection of the Commission

 

(1)     No criminal or civil proceedings shall lie against the Commission or against any person acting on behalf of or under the direction of the Commission, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Act.

 

(2)     For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice or in bad faith.

[Drawn from Article 19 Model Law]

 

(3)     Personnel who disclose wrongdoing within the Commission shall not be subject to any detriment in the course of their employment by reason of the disclosure.

[Drawn from the AU Model Law]

 

L.     Code of conduct

 

(1)     The Commission shall develop its own code of conduct after consultation with the Minister for Justice and the general public.

(2)     The Commission may after consultation with the Minister of Justice and the public, review such code of conduct from time to time.

(3)     Any code of conduct issued by the Commission or amended after review by the Commission shall be made public within 30 days of its confirmation.

[Drawn from the AU Model and the Mexico FOI law]

 

M.   Engagement of experts

 

(1)     The Commission may, whenever it deems appropriate, convene a panel of specialist experts or obtain the cooperation of any body for the purposes of decision making, issuing recommendations or other work undertaken under this Act.

(2)     The terms of engagement of such temporary services are to be determined by the Commission.

(3)     Any panel of experts convened must include representation from appropriate civil society organizations.

 

N.    Regulation of procedure

(1)     Subject to this Act, the Commission, in consultation with the Minister for Justice shall determine the procedure to be followed in the exercise of any power, the performance of any duty or function of the Commission under this Act.

(2)     The Commission may, from time to time, after public consultation, review the procedure referred to in subsection (1).

 

LIMITATION OF PERIOD OF EXEMPT INFORMATION

 

Commentary: Refer to Section 57 in the current Bill. Subsection (1) should be retained while sub-section (2) should be amended. The section should read as follows:

 

(1)     Information classified as exempt information under sections … to … in respect of public bodies/agencies ceases to be exempt information on the expiry of twenty-five years calculated from the end of the calendar year in which the information into came existence.

 

(2)     On the expiry of the period specified in subsection (1), a person may seek access to the information and the public body/agency which has custody of the information shall give access in accordance with the procedure established under this Act, provided however that where disclosure of the information will endanger the life or physical safety of an individual, the information shall not be disclosed. 

 

CHIEFTAINCY INSTITUTION

 

Commentary: The Chieftaincy institution is a political institution, and thus a public body and not a private body.  Furthermore, Article 36(cool.gif of the Constitution expressly provides stools and skins are accountable as fiduciaries to their people as follows:

 

“36 (cool.gif The State shall recognize the managers of public stool and family lands as fiduciaries charged with the obligation to discharge functions for the benefit of the people of Ghana, of the stool, skin or family concerned and are accountable as fiduciaries”.

 

Accordingly, we propose that stools and skins should be accountable for the income they receive from the management and or use of stool lands and from public donations and grants to stools and skins for the development of their communities.

 

We accordingly propose the following new section:

 

(1)     Every member of a stool or skin shall have the right of access to information  from his/her stool or skin in respect of income or other resources received from the management, alienation or use of stool land  and for donations made to the stool or skin for the development of the community which the stool or skin represents.

 

(2)     The National House of Chiefs shall in consultation with the Commission established under this Act make regulations and established procedures which every stool and skin shall comply with in granting access to information to members of their community on the use of resources derived from the management and use of stool lands and monies and other resources donated to stools and skins for the development of their communities.

 

 

OTHER ISSUES THAT DEMAND THE ATTENTION OF THE SELECT JOINT COMMITTEE

 

In addition to the issues identified for the zero draft, we believe there are certain provisions of the current text which though are not the specific subject of this zero draft, ought in our respectful view, to be improved upon, or where there are omissions filled in order that the full objects of the right to information may be secured to the people and our Republic.  With respect we proceed to consider them.

 

TIMELINES FOR DISCLOSURE OF INFORMATION

 

Commentary: This issue has been a question of widespread concern among the stakeholders and was in particular a major subject of critical comment during the nation-wide consultation of the Parliamentary Select Joint Committee.  Unfortunately however, it seems to have escaped the review meeting as one of the critical issues that ought to be flagged for further consideration.   This is because the timely disclosure of information is fundamental to the efficacy of any right to information legislation.  Regrettably the time-lines for disclosure under the current Bill are unduly long and are likely to have the direct effect of undermining this right.  Currently, by virtue of the combined effect sections 23(1) and 26 (1) of the Bill, it may take 151 days, that is, over five months, for an application for information to be granted.  And yet this would be perfectly lawful!  Neighbouring Nigeria’s FOI law provides for 7 days for responding to applications with an extension of a further 7days.   Liberia, which just recently emerged from a brutal civil war provides in its Freedom of Information Act, a maximum period of 30 days for every public and private body to respond to an application provided that this period may be extended only once upon showing reasonable cause.  We are therefore, with respect, taking this opportunity flag the question of timelines for the critical consideration of the Select Committee.

 

We propose the following:

 

Section 23 (1) be amended as follows;

(1)     Where an application for access is received by an agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

Section 23 (3) be retained.

 

Section 26 (2) be amended as follows:

(2)     The period of extension shall not exceed twenty-one days from the date when a decision on the application should have been made.

 

Commentary: In any event there is no justification for a further extension by the Minister in charge of the agency by a total of three months under section 26 (1) and that part should definitely be deleted.

 

LONG TITLE OF THE ACT

 

We propose that the long title of the Act be amended as follows:

 

“An Act to provide for the implementation of the right to information held by public  and private agencies/bodies, subject to exemptions that are necessary and consistent with the protection of the public interest and the rights of the individual in a democratic society; to foster a culture of transparency and accountability in public affairs, to contain corruption, promote popular participation in governance, to place obligation on public and private agencies/bodies to provide information proactively and in response to a formal request in a timely, inexpensive and reasonable manner and to provide for related matters”..   

 

RIGHT OF ACCESS TO INFORMATION

 

We propose the following amendment of section 1in the current Bill.

 

(1)     Every person shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society. 

 

Commentary: This is a direct reproduction of the constitutional guarantee of the right to information.  We propose that the text begins with an affirmation of the specific text of Article 21 (1) (f).

 

(2)     Subject to the Constitution and the provisions of this Act, every person shall have the right of access to information or part of the information in the custody or under the control of a public body/agency or a private body/agency subject to this Act.

 

(3)     The exercise of the right under subsection (2) is subject to the exemptions specified in sections … to ….

 

Commentary: Note that we have combined some of the exemptions into one section and so the numbering will change if our proposal is considered acceptable.

 

(4)     Nothing in this Act is intended to prevent or discourage public or private bodies/agencies from publishing or disseminating and giving access to information, (including information exempt under the provisions of this Act) where they can properly do so or are required by law to do so.  [Drawn from the Draft Model Law for AU Member States] 

 

Commentary: This is to ensure that notwithstanding the general provisions on exempt information under the RTI law, where some specific law requires disclosure or where a public agency can properly and lawfully disclose information, the provisions on exempt information do not become a barrier to disclosure.

 

DUTY ON RECORD-KEEPING BY PUBLIC AND PRIVATE BODIES/AGENCIES

 

We propose a new section which underscores the fundamental obligation of public and private bodies under this Act to create and keep records thus:

 

“Every public or private body subject to this Act shall have the obligation to create, maintain and preserve any information it generates or which comes into its custody in a manner that facilitates easy retrieval and access in accordance with guidelines of the Commission”.

 

GUIDE ON HOW TO USE THE ACT

 

We propose insertion of a new section before section 3 of the current Bill on the need for the Information Commission to publish and disseminate a guide on how to use the Act.

 

(1)     The Information Commission established under section … of this Act shall within eighteen (1cool.gif months after the commencement of this Act compile and disseminate in English, and other Ghanaian languages, and in a simple and user-friendly form, a guide as to how to use this Act.

 

(2)     The guide must, without limiting the generality of subsection (1), include a description of:

(a)    the objects of this Act;

(b)   the postal and street address, phone and fax number and, if available, the electronic mail address of:

(i)            the information officer of every public or private body/agency; and

(ii)          every deputy information officer of every public body/agency appointed under this Act; and

(iii)        the website of the public or private body/agency;

 

(c)    such particulars of every public or private body as are practicable;

(d)   the manner and form of an application  for:

(i)       access to a record of a public body contemplated in section …; and

(ii)     access to a record of a private body contemplated in section …

 

(e)    the assistance available from the information officer of a public or private body/agency in terms of this Act;

(f)    the assistance available from the Commission in terms of this Act;

(g)   all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

(i)       an internal review; and

(ii)     an application to the Commission against an Internal Information Review Officer of a public body/agency or an information officer of a private body/agency;

 

(h)   the provisions of sections 3 (current) and …  requiring a public body/agency and private body/agency, respectively, to compile a manual, and how to obtain access to a manual;

(i)     fees to be paid in relation to requests for access; and               

(j)     the regulations made in terms of section 64 of the current Bill.

 

(3)     The Information Commission must, if necessary, update and publish the guide at intervals of not more than two years.

 

PROACTIVE DISCLOSURE

 

We propose that the current section 3 of the Bill which places on the responsible Minister the obligation to publish a manual listing the agencies under the Ministry and which specifies the list of facts and matters to be disclosed in the Manual to published by every Minister should be amended as follows:

 

(1)     The Minister responsible for a public body/agency shall, within twelve months from the date of coming into force of this Act, and every twelve months after that date, compile and publish, after consultations with the Information Commission established under this Act, the Public Services Commission and the Head of Civil Service, and in accordance with the guidelines issued by the Information Commission under section ….., an up-to-date official information compilation in the form of a manual, listing the public bodies/agencies that are under the Ministry.

 

(2)     The manual shall contain:

 

(a)    a description of the organizational structure and functions of each body/agency, including details of the responsibility of each division or branch of each public body/agency;

(b)   the names salaries and dates of employment of all employees and officers of the public body/agency;

(c)    the channels of supervision and accountability in a decision-making process;

(d)   the norms set by the public body/agency for the discharge of its functions;

(e)    the budgets allocated to each public body/agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made;

(f)    particulars of recipients of concessions, permits, grants, licences, contracts, authorization granted by the public body/agency;

(g)   a list of materials containing information relating to any grant or contract made by or between the public body/agency and another public/body agency or private body/agency;

(h)   a list of the type of information that may be purchased or inspected free of charge or subject to a fee and fee payable in respect of an access to information specified by the Commission under section …..

(i)     the name, telephone number, fax, e-mail and postal address of the information officer of the agency or designated officer or deputies thereof, where necessary, of the public body/ agency to whom a request for access maybe made;

(j)     the place in the agency where information is available under this Act or any other enactment, can be found or made available, including its website, if any;

(k)   the arrangements made and procedures established in the agency that will enable members of the public participate in the formulation of the policies of the agency;

(l)     the policies and decisions of the agency and the reasons for the policies;

(m)the arrangements made or procedures established by the agency to enable a member of the public seek amendment of the member’s official record with the agency.

[We have been guided by provisions of the Ghana Bill, the South African, Nigerian, and Liberian FOI laws, AU Draft Model law and Article 19 Model Law]

                                                        

GENERAL AND MISCELLANEOUS PROVISIONS

 

A.    Deemed refusal

 

We also propose a new section on ‘Deemed Refusal’ to be inserted before section 27 of the current Bill.

 

Deemed Refusal – General and miscellaneous provisions affecting public and private bodies/agencies under this Act

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…within the extended period of time, the information officer shall be deemed to have refused the application.

 [Drawn from the AU Model law]                

 

 

B.     Duty of every public and private body/agency to publish and disseminate manual

 

Commentary: In the spirit of proactive disclosure, every public and private body/agency should have a duty to publish and disseminate its manual. We propose that a section on this duty is included under the General and Miscellaneous part of the Bill as follows:

 

Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

 

(a)    a description of its structure, functions, duties and finances;

(b)   relevant details concerning any services it provides directly to members of the public;

(c)    any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

(d)   a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a  request for information;

(e)    a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

(f)    any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

(g)   the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

(h)   any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.

 

“publish” means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination.

[Add to the definition section]

 

 

C.    Primacy of the Act

 

We propose that section 66 in the current Bill should be designated:

 

“Primacy of Act and Modification of Existing Enactments”

 

[This is drawn from the AU Model Draft law]

 

We also propose further that instead of the text of the current clause 66, we substitute a new clause as follows;

 

(1)     This Act applies to the exclusion of any provision in any other legislation or regulation that prohibits or restricts the disclosure of informationof a public body/agency or a private body/agency.

 

(2)     Nothing in this Act shall limit or otherwise restrict any other legislative requirement, policy or established practice for a public agency or a private agencyto disclose information.

 

Commentary: This provision is common to right to information legislation.  The purpose is to ensure that where a specific law mandates the disclosure of information that might otherwise be exempt under the general provisions of this Act, the specific provision for disclosure is complied with. [Drawn from the AU Model Draft law and Article XIX Model Law]

 

Training of Officials

 

We propose to add a new provision as follows under the General and miscellaneous part.

 

“Every public and private body/agency subject to this Act shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act”. [Drawn from Article XIX Model Law]

 

 

TRANSITIONAL PROVISIONS

 

(1)     Every public or private body/agency subject to this Act shall designate information officers and deputy information officers, where necessary, train and equip them with the necessary resources and expertise within …. months after this Act comes into effect and they shall start functioning within a further ….months.

 

(2)     Every public or private body/ agency shall establish effective systems of record creation, maintenance, preservation and retrieval to facilitate the object of this Act and shall complete the organization of their archives within the first … month of the coming into effect of this Act.

 

(3)     The nomination of the first ….Commissioners shall take place not later than …. months after the law come into effect.  Two/three of the Commissioners shall end their tenure in …years and they may be re-appointed for an additional term, of …years.

 

(4)     Individuals may present applications for access to information or access to and correction of personal information one year after this Act comes into effect.                                                                                     

 

(5)     As soon as possible but in any event within eighteen months of the coming into effect of this Act, all public bodies/agencies and private bodies/agencies shall be required to prepare information manuals to be deposited with the Commission and in the designated places within the public and private bodies/agencies and also on their websites, if any, in conformity with sections … and …. of this Act..

 

(6)     The provisions of this act will become fully operational............months after the coming into effect/ passage into law of this Act.

 

(7)     For purposes of the current section 23, for a period of twelve months from the time the provisions of this Act becomes fully operational every reference to fourteen working days or fourteen days shall be construed to mean thirty days and every reference to twenty-one days shall be construed as forty-two days                         

 

(cool.gif      The Attorney General, in consultation with the Information Commission, shall, within eighteen months of the coming into effect of this Act, review all laws restricting access to information, including the State Secrets Act, 1962 (Act 101), the Civil Service Act, 1993 (PNDCL 327) and the regulations pursuant thereto

 

 

and the Oaths Act1972 (NRCD 6), to bring them into conformity with the provisions of the Constitution and this Act.

 

SCHEDULE

Form of oath or affirmation to be made by Commissioners (Section …..)

 

I, ………:………. …..having been appointed the Chairman of the Information Commission/ a member of the Information Commission do  (in the name of the Almighty God) (solemnly affirm that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitutions and the laws of the Republic of Ghana.  (So help me God).

 

To be sworn before the president, the Chief Justice or such other person as the Chief Justice may designate.

 

 

 

Akoto Ampaw

6th May 2012

Accra

 

 

Secretariat

An Option Paper on RTI Bill!

Posted by admin on 2012-07-18 16:17:58 UTC

 

THE GHANA RIGHT TO INFORMATION BILL, 2010

AN OPTION PAPER/ZERO DRAFT

 

Introduction

The Ghana Right to Information Bill, 2010 seeks to provide for the implementation of the Right to Information guaranteed under Article 21(1)(f) of the Constitution of the Republic of Ghana, 1993. The Bill was tabled before Parliament on February 5, 2010 and it was specifically allocated to the Parliamentary Select Joint Committees on Communications; and Constitutional, Legal and Parliamentary Affairs to scrutinize and come up with recommendations. The Joint Committees held public consultations on the Bill between July and August 2011 in which they gathered various views on the content of the Bill. In March 2012, the Joint Committee held a review meeting at which it was decided that certain key issues within the Bill needed to be re-visited or improved upon in order to bring the Bill in conformity with international human rights standards and best practices on the right to information. It is in respect of this decision that we were requested to produce a zero draft with regard to the following specific areas/issues identified by the Joint Committee.

 

               i.          Exemptions

             ii.          Private bodies

           iii.          An Independent Information Commission

           iv.          Fees

             v.          Accountability measures for collecting and managing internally generated funds

           vi.          Appeal process; and

         vii.          Declassification of information.

Sources

In producing this zero draft, we have taken into account the reputation of Ghana as a beacon of democracy in Africa and the fact that many African countries look to Ghana for good example to emulate.  A Ghana Right to Information Law is thus most likely to be a reference source for other African countries struggling to build democratic institutions of governance and a culture of democracy. We have also taken into account the fundamental principles underpinning any genuine and effective right to information legislation which include, transparency, openness, effective participation of the population in the processes of governance, accountability and the curtailment of rank corruption, the promotion of social justice and the delivery of social services through the role the right to information plays in giving expression to other rights. Then have been the views expressed by Ghanaians across the length and breadth of the country during the nation-wide consultations held by the Parliamentary Select Joint Committee. We have also considered the following documents as a guide to the zero draft.

 

a)         The Commentary of the Coalition on the Right to Information, Ghana.

b)        The Model Draft Law for AU Member States on Access to Information prepared under the auspices of the Special Rapporteur on Freedom of Expression and Access to Information.

c)         The Declaration of Principles on Freedom of Expression in Africa by the African Commission on Human and Peoples’ Rights.

d)        The Public Right to Know Principles of Article X1X

e)         A Model Freedom of Information Law by Article XIX, endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression,

f)         The Freedom of Information Act of the Republic of Liberia, 2010.

g)        The Freedom of Information Act of the Federal Republic of Nigeria, 2011.

h)        The Promotion for Access to Information Act of the Republic of South Africa, 2000.

i)          The India Right to Information Act, 2002.

j)          The UK Freedom of Information Act, 2000.

k)        The Mexican Federal Transparency and Access to Public Government Information Law, 2002.

 

PROPOSED AMENDMENTS TO THE GHANA RIGHT TO INFORMATION BILL- ZERO DRAFT

 

GENERAL EXEMPTIONS

 

A.    Refusal

A public or private body/agency may refuse to grant access to informationonly if the information falls within an exemption provided for in this Act.[Drawn from the AU Draft Model Law]

 

B.     Public interest override

(1)     Notwithstanding any of the provisions of this Act on exemptions, information is not exempt and the information officer must grant a request for access to information if the disclosure of the informationwill reveal or reveals evidence of:

 

(a)    a contravention of, or failure to comply with a law; or

(b)    an imminent and serious risk to public safety, public health or the environment;

(c)    miscarriage of justice;

(d)   abuse of authority or neglect in the performance of official function

(e)    abuse of  authority or neglect in the performance an official duty or

(f)    other legitimate public interest so requires

 

and the benefits of disclosure outweigh the harm or danger that could occur in the event of disclosure

 

Commentary:We have reviewed slightly the original section 18 by including ‘information that ‘will reveal’and also a general ‘legitimate public interest consideration’. This with respect is consistent with international best practice and human right norms that subjects exemptions to a general public interest override. Currently, section 18 subjects exceptions only to the specific instances mentioned in sub-clauses (a) to (e).  As is well established in the law, public interest is not a closed category and the danger of a limited public interest override clause is that it may omit an unanticipated situation where the public interest requires that the exemption give way to disclosure.

 

(2)     An information officer must consider whether subsection (1) applies in relation to any information requested before refusing access on the basis of the          information being exempt under the provisions of this Act. [Drawn from the AU Draft Model law]

 

C.    Classified Information

(1)     The fact that any information in the custody of a public body/agency is kept by that body/agency under security classification or is a classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public body/agency to which the application is made shall decide whether such information is of a type referred to as exempt information under this Act

 

(2)     If the public body/agency to which the application in subsection (1) is made decides that such information is not a type mentioned in the sections referred to in subsection (1), access to such information shall be given to the applicant, notwithstanding its categorization as classified security information.

[Drawn from the AU Draft Model law]

 

Commentary: Sometimes, attempts are made to overreach the provisions of a right to information legislation by the simple sleuth of hand of classification as “top secret’, for your eyes only’, ‘highly confidential’ etc.  What this provision does is to ensure that officials do not by mere form of classification pre-empt the need to show whether the information fails within the categories of exemption specified in this Act.

 

D.    Information already available to the public

Notwithstanding any provision relating to exempt information, a body may not refuse to disclose information where the information is already publicly available.

 

We propose all the above should precede section 6 and other provisions on exemptions so that the current impression that the Act is more about exemptions than the right to, and obligation to disclose, information is avoided.  These provisions preceding the exempt provisions will thus give the positive emphasize that the law is about the right to information and not otherwise. The sections will accordingly be renumbered.

 

E.     Information from the office of the President, the Vice-President and the Cabinet

(1)     Information is exempt from disclosure:

 

(a)      if it is for submission or has been submitted to the office of the President or of the Vice-President or to the Cabinet; or

(b)       if it contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendation, minutes or consultations made or given to the President, the Vice-President  or Cabinet

and disclosure would or is likely:

 

(i)     to cause material prejudice to the effective formulation or development of government policy;

(ii)   seriously to frustrate the success of a policy, by premature disclosure of that policy;

(iii)significantly to undermine the deliberative process in the office of the President, Vice-President or the Cabinet by inhibiting the free and frank provision of advice or exchange of views;

(iv)to cause material prejudice to national security.[Addition to comply with the harm test]

 

(2)     Where information requested is exempt by reason of any of the grounds/provisions set out in sub-section (1), the Secretary to the President or the Secretary to the Vice president or the Secretary to the Cabinet or the National Security Coordinator shall state so by a signed certificate giving reason why it is exempt and, subject to the right of appeal to the Information Commission under section …., such certificate shall be conclusive evidence that the information is exempt..

 

(3)     Information which contains factual or statistical data and does not disclose information concerning a decision, deliberation or discussion of the office of the President, the Vice President or of the Cabinet is not exempt information.

 

(4)     This section does not prevent the President, the Vice President or the Cabinet from publishing or granting access to information that is otherwise exempt.

 

(5)     For purposes of this section, a reference to Cabinet includes a reference to a committee or sub-committee of the Cabinet.

 

Commentary:

(a)      We have combined Clauses 5 and 6 of the Bill into one section.

(b)     We have been guided by the provisions of the Draft Model Law for AU Member States and also Article XIX’s Model Freedom of Information Law as well as international best practice that disapproves of blanket exemptions, which are not subject to any harm test as contravening the right to information.

(c)      We have also replaced the phrase ‘Head of National Security’ with National Security Coordinator, as no such office as the ‘Head of National Security’ exists under the Security and Intelligence Agencies Act, 1996 (Act 526).  The office that is established under that Act is the National Security Coordinator.

 

F.     Information relating to law enforcement, public safety and the protection of property

 

Commentary: Refer to current Section 7 in the Bill. We have removed national security from the sub-heading as that is dealt with by combining section 7(3) with section 9 as a separate section.

 

(1)     Information is exempt from disclosure if it contains matters which if disclosed would or can reasonably be expected to:

 

(a)    materiallyprejudice the prevention, detection or curtailment of a contravention or possible contravention of a law;

(b)   materially prejudice the investigation of a contravention or possible contravention of a law;

(c)    materiallyprejudice the plan or manner of use of investigation techniques and procedures in law enforcement;

 

Commentary: We have introduced the adverb ‘materially’ and replaced ‘interfere’, which is overly broad with ’prejudice’, which is more concrete.

 

(d)   to disclose the identity of a confidential source of information, matter or the information given by a confidential source in respect of law enforcement;

 

Commentary: We note that sub-clauses (b), (c) and (d) in fact entail no more than an elaboration of sub-clause (a) and are in that sense repetitive. They simply add to the undesirable impression of a long list of exemptions. They may therefore be deleted as superfluous.

 

(e)    materiallyprejudice the prosecution of an offender;

 

Commentary: We have substituted ‘offender for ‘offence’, we believe this is a drafting error.

 

(f)    endanger the life or physical safety of a person;

(g)   prejudice the fair trial of a person or the impartial adjudication of a case;

(h)   materially interfere with the maintenance or enforcement of a lawful method or procedure for protecting the safety of the public;

(i)     endanger the security of a building, structure or means of transport or system, including computer and communications systems for which  security is reasonably required;

(j)     prejudice the security of a prison or place for lawful detention;

(k)   prejudice a system or procedure for witness protection or any other procedure for the protection of persons or property where the protection is required

 

(2) Information shall not be withheld: 

 

Refer to Section 7 (2) of the current Bill:

We propose here substituting for the passive words ‘Information is not exempt from disclosure’ the active words ‘Information shall not be withheld’. We do not propose any changes to the rest of the section 7 (2).

 

G.    Information that affects the security of the State and the defence of the country

 

Commentary: Section 7(3) should be combined with section 9 as they both deal with matters of security and defence of the country as follows:

“Information that affects the security of the State and the defence of the country”

 

(3)     Information created by or in the custody of the Armed Forces or the security and intelligence agencies established under the Security and Intelligence Agencies Act, 1996 (Act 526) which relate to the security of the State is exempt information if disclosure will prejudice the security of the state.

 

Commentary: This replaces the current section 7(3) which provides for blanket exemption of every piece of information, without distinction, in the custody or created by these bodies even where their disclosure may not cause any harm by subjecting the exemption to a legitimate harm test.

 

(4)     Information is exempt if its disclosure can reasonably be expected

(a)    to damage or prejudice the defence of the State or a foreign state allied to or friendly with the State; or

(b)   to be prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.

 

Commentary: We think the sub-clause (b) is not necessary as it is simply an elaboration of section 7(1) (a)

 

H.    Economic and any other interests

 

Commentary: Refer to Section 10 in the current Bill. We suggest that the provisions of section 10 be maintained except section 10 (c), which is couched in extremely broad and vague terms and can be used by public officials to deny otherwise legitimate requests for information. 

 

We accordingly propose that either section 10(c) be deleted altogether or be reformulated thus:

 

(c)  if the disclosure can reasonably be expected to cause serious disruption of business and trade in the country.

 

Section 10 (f) be expanded as follows:

 

(f)  it contains questions to be used in academic or professional examination or recruitment or selection process if the release is likely to jeopardize the integrity of that examination or recruitment or selection process. [Addition highlighted]

 

I.       Economic interests of third parties.

 

Commentary: Refer to section 11 in the current Bill. We only propose that changes be made to section 11(1) of the current Bill. The terms ‘expressly or impliedly’ should be deleted from the section 11(1) so that the section reads thus:

 

(1)     Information which would reveal a trade secret, research, scientific, technical, commercial, financial or labour related information of a private body or which is supplied in confidence is exempt information if the disclosure can reasonably be expected:

(a)   retain current section 11(1) (a);

(b)   retain current section 11(1) (b);

(c)    to result in similar information not being supplied to the public or private body, where it is in the public interest or the legitimate interest of the private body that such information continues to be supplied. 

 

Commentary: We propose that this should replace the original sub-clause (c)] to deal with both public bodies/agencies or private bodies/agencies and also correct infelicitous language.

 

J.      Information relating to tax

 

Commentary: Retain current text.

 

 

K.    Internal working information of agencies

 

Commentary: Refer to Section 13 in the current Bill.

 

(1)     Information is exempt information which if disclosed would or would be likely to:

 

(a)    cause material prejudice to the effective formulation or development of policy by a public or private body/agency;

(b)   seriously frustrate the success of a policy, by premature disclosure of that policy;

(c)    significantly undermine the deliberative process in a public or private body/agency by inhibiting the free and frank provision of advice or exchange of views in the cause of or for the purpose of making a decision in a public or private body/agency;

(d)   significantly undermine the effectiveness of a testing or auditing procedure used by a public or private body/agency.

 

Commentary: The above section has been reformulated to take account of both public and private bodies/agencies.

 

(2)     Information is not exempt under sub- section (1):

 

(a)    if it merely contains material that has been publicly mentioned as forming the basis of a policy or formulating public policy;

(b)   if it contains only factual, technical and statistical data.

 

Commentary: Sections 14, 15 and 16 of the current Bill should be put under one section. The new section should read as follows:

 

(1)     Information is exempt information

 

(a)    if the information is privileged from production in legal proceedings under the Evidence Act 1975 (NRCD) as may be amended from time to time unless the person entitled to the privilege has waived it;

(b)   if its disclosure can reasonably be expected to constitute contempt of court or a quasi-judicial body.[Addition highlighted]

 

L.     Disclosure of personal matters

 

Commentary: Refer to section 17 in the current Bill. Retain the text of section 17 (1).

 

Amend the text of section 17 (2) thus:

 

(2)     Disclosure is unreasonable if it reveals or is likely to reveal information about the individual’s:

 

(a)    physical or mental health;

(b)   confidentialmarriage or employment record;

(c)    confidentialprofessional, commercial or financial affairs.

 

Commentary: Section 17 (2)(c) in the current Bill should be deleted since it is already catered for and protected under section 11.

 

Retain the whole of section 17 (3) and add the following as 17(3) (k)

(k)   it is about an individual’s physical or mental health or well being who is under the care of the applicant and who is:

 

(i)       under the age of 18 years; or

(ii)     incapable of understanding the nature of the request

and giving access would be in the individual’s best interest.

 

We propose that the sections on exemptions in their entirety be removed from where they currently are and are inserted after the current section 29, which deals with Manner of Access.  This will ensure that the Act, as a Right to Information Act, sets out the procedure and the grounds for access to information in the initial sections, and only after this should the exemptions follow.  We believe that this will enhance the impact of the Act as an access to information Act on anyone who reads it and make it user friendly.  Currently, the first impression one gets upon reading the Bill is that it is more about exemptions than access.  The South African, Indian, AU Model and Article XIX Model and Liberia and Mexican laws all follow this format.  And we respectfully urge the same on Honourable members

 

M.   Public interest override

 

Commentary: Section 18 has been removed and placed at the beginning of the provisions dealing with exemptions.  It has also been expanded to include a general public interest override.

 

 

ACCESS TO INFORMATION FROM PUBLIC AND PRIVATE BODIES

 

A.    Public body/agency (Definition)

A public body/agency for the purposes of this Act includes:

 

(a)    any body established under the Constitution;

(b)   a Ministry, governmental department, District Assembly, or a local authority; or

(c)    a statutory or any other body corporate or unincorporated or a public office, funded in whole or part from public funds or in which the Government has an interest or shares.

 

B.     Private body/agency (Definition)

A private body/agency for the purposes of this Act is a juristic person, which is not a public body as defined in this Act and which is wholly owned, controlled and financed by individuals or corporate bodies, not being public bodies and which:

 

(a)    carries out public function or statutory functions or provides public  services; or

(b)   exploits the natural resources of the country.

 

Commentary: We are proposing generally that instead of the term ‘government agency’ we substitute wherever the term appears the phrase   ‘public body/agency’.  This is because ‘government agency’ has, in our view, a rather limited reach as compared to ‘public body/agency’ which is intuitively broad enough in its everyday meaning to encompass the reach of public bodies.   Similarly the phrase ‘private body’ appears to be a simpler and more general term than private agency.  Finally, most right to information legislation use the phrase ‘public or private bodies’.   There appears in our respectful view, no compelling reason why the Ghana legislation should depart from this healthy tradition of right to information legislation. These definitions should be under the definition section in section 65 of the current Bill.

 

C.    Right of access to information in custody of private bodies/agencies

 

(1)     Every person shall have the right of access to information in the custody of a private body/agency, if:

 

(a)    the information sought is necessary for the protection of any right, including the right to the protection of the fundamental rights of the applicant or the right to the protection of any statutory and common law right; or

(b)   the information is necessary for the protection of broad social or public interests, such as public safety, public health, the environment or public funds.

 

(2)     A person shall disclose the right or public interest he or she seeks to protect where he or she applies for information from a private body/agency.

 

(3)     The exercise of the right in subsection ….is subject to the exemptions specified in sections…. to….

 

(4)     Where a private body/agency receives an application for access, part of which is exempt, the information officer or the head of the private agency as the case may be, shall disclose to the applicant as much of the information as can reasonably be separated without disclosing the exempt part.

 

The entire section above should come immediately after section 1 in the current Bill.

 

D.    Designation of information and deputy information officers

 

(1)     Every public or private body/agencymust designate an information officer and a deputy, where necessary, to enable the body/agency comply with the requirements of this Act.

 

(2)     If a private agency fails to designate an information officer, the head of the body will be the information officerfor the purposes of this Act.

 

(3)     A person appointed as an information officermust be competent to exercise the powers and perform the duties and functions of an information officer under this Act.

 

(4)     The information officerhas the powers, duties and functions that are conferred or imposed on the information officerby this Act.

 

(5)     A deputy information officermay exercise all the powers, duties and functions of an information officer.

 

(6)     Each person designated as a deputy information officerof a public or private agency shall be subject to the supervision of the information officerof that public or private agency in the performance of the powers, duties and functions under this Act.

 

This section on designation of information officers should follow immediately after preceding section on right of access to information.

 

E.     Compilation and publication of the manual of a private body/agency

 

Responsibility of head of private body in respect of access

(1)     The head of a private body/agency shall, within twelve months from the date of the coming into force of this Act, compile and publish in accordance with guidelines issued by the Information Commission an up-to-date manual containing:

 

(a)    the postal and street address, phone and fax number and, if available, electronic mail address of the and website of the private body/agency

(b)   a description of the guide referred to in this section, if available, and how to obtain access to it;

(c)    the latest information regarding the categories of information of the body/agency which are available without a person having to request access in terms of this Act and those available on request;

(d)   a description of the information of the agency which is available in accordance with any other legislation;

(e)    sufficient detail to facilitate an application for access to information of the body;

(f)    description of the subjects on which the body holds records and the categories of records held on each subject; and

(g)   such other information as may be prescribed by the Commission.

   

(2)     The head of a private body/agency must on a regular basis update the manual referred to in subsection (1).

 

(3)     Each manual must be made available as prescribed under the guidelines of the Commission.

 

(4)     For security, administrative or financial reasons, the Information Commission may, on request or of its own accord, by notice in the Gazette, exempt any private agency or category of private agencies from any provision of this section for such period as the Commission thinks fit.

 

The above section on ‘responsibility of the head of the private body/agency’ should follow section 3 in the current Bill.

 

Provision of guidelines for the manual

The Information Commission shall, in consultation with the Minister of Justice/Attorney General, provide guidelines for the preparation of the manual under section …..(Immediately above).

 

This section on ‘provision of guidelines for the manual’ should follow the section on ‘responsibility of the head of the private body/agency.

 

F.     Procedure for access to information of private bodies/agencies

 

(1)     An application for access to information held by a private body/agency shall:

 

(a)    be made in writing to the body/agency;

(b)   contain sufficient description or particulars to enable the information to be identified;

(c)    indicate the form and manner in which access is to be granted;

(d)   state the capacity of the applicant to the satisfaction of the officer to whom the application is made, if the application is made on behalf of another person;

(e)    state the address in the country (postal, street, fax  or e-mail) to which a communication or notice can be sent;

(f)    state the individual right or public interest sought to be protected by the information requested for   and provide an explanation of how the information is likely to protect the right or interest; and

(g)   include a statement that the application is for the protection of the life or liberty of a person and the basis for it, where the applicant is of the belief that the information is necessary to safeguard the life or liberty of a person.

 

(2)     Where an applicant is unable to make the application in writing due to illiteracy or a disability, the applicant shall make the request orally.

 

(3)     Where a request is made orally under subsection (2), the request shall be reduced into writing by the officer to whom the application is made who shall keep a copy of the written request as recorded and as duly authenticated by the applicant.

 

(4)     Where an application does not sufficiently describe the information required, the private body/agency to which the application is made shall so inform the applicant and offer the applicant the necessary assistance to identify the information.

 

Decision on application

 

(1)   Where an application for access is received by a private body/agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

(2)   The notice shall state:

(a)    whether or not access to the information will be given;

(b)   whether access to only a part of the information can be given and the reason for giving only a part ;

(c)    whether or not there has been a transfer to a subsidiary or holding company;

(d)   whether or not there is a deferred access under section ….

 

(3)   Where the information officer decides to give access, the notice shall state:

 

(a)     the period which shall not be more than fourteen days, within which the access can/will be given;

(b)    the form and manner in which access will be given;

(c)     whether access is to only part of the information because the other part is exempt

(d)    the day on which the body/agency expects he information to be published or submitted in the case of a deferred access under section …;

(e)     the fees to be paid by the applicant, if any

 

(4)   Where the body/agency decides to refuse access, the notice shall state:

 

(a)     the reason for the refusal;

(b)   the right of the applicant to seek redress by appealing to the Information Commission under section …… of this Act.

(c)    the name and rank of the officer who dealt with the application.

 

Extension of time to deal with application

 

The same as section 26 (1) in the current Bill, except that, we propose the deletion of the Minister’s discretion on application to extend the period for a further three months. [Please see our proposals on timelines below]

 

We propose a new section after section 26 thus:

 

Notwithstanding sections 23 (1) and (3) (a) and 26 (in the current Bill), where an application relates to informationwhich reasonably appears to be necessary to safeguard the life or liberty of a person, the information officermust within forty-eight hours or some such shorter period,

 

(a)    determine whether to grant the application;

(b) notify the applicant of the decision in writing; and

(c) if the application is granted, give the applicantaccess to the information.

 

Notwithstanding subsections (1), (3)(a) and the section on extension of time(above), where information requested contains third party information, an applicant may not be granted access to that informationuntil such time as any right of the third partyto appeal the release of the information has expired or any appeal lodged by the third party has been finally determined.

[Drawn from the AU Draft Model Law]

 

 

 

 

48 hour request refused

 

If upon reviewing an application, it does not appear to the information officer that the information requested reasonably appears to be necessary to safeguard the life or liberty of a person, the information officer shall within forty-eight hours of receipt of the application:

 

(a)    give notice of his decision, including adequate reasons for the decision, to the applicant;

(b)   inform the applicantthat, subject to the applicant‘s right to apply to the Information Commission for a review, the information officerwill make a decision regarding whether  to grant access to the requested informationwithin the time period specified in the combined effect of subsection (1) and (4), that is fourteen working days and a further fourteen days.

 

Information that cannot be found or not in existence

 

Retain section 24 of the current Bill.

 

Deemed refusal

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…,within the extended period of time, the information officer shall be deemed to have refused the application.

 

G.    Internal reviews and appeals from a decision of a public body/agency

 

Refer to section 38 in the current Bill.

 

(1)     Except a otherwise provided in this Act, a person aggrieved by a decision of the information officer of a public body/agency may submit an application for review of the decision to a senior officer specifically designated for that purpose by the Minister responsible for the body/agency to be known as the Internal Information Review Officer.

 

Commentary: Instead of vesting the Minister with the duty to review, the responsible Minister rather designates a senior official in the Ministry for this function.  This is because invariably, the minister would be too busy with other core functions of the Ministry to have time for internal reviews under the Act.

      

(2)     An application for review shall be:

 

(a)    in writing and addressed to the Internal Information Review Officer; and

 

Commentary: Subsection 2 (a) and (c) of section 38 in the current Bill have been combined.  We also propose that subsection (b) on payment of appeal fees be deleted as this could serve as a powerful disincentive and stifle the interest of citizens and other persons to challenge negative decision on their applications.

 

(b)   submitted within twenty-one working days after receipt of the notification of the decision sought to be reviewed, provided however that the Internal Information Review Officer may where it is just and fair extend the time within which to file an application for review.

 

(c)    Where the applicant is unable for whatever reason to write the review application, the information officer shall assist him in writing the application for review.

 

Action by the Internal Information Review Officer

 

Commentary: Refer to section 39 in the current Bill. Consistent with our proposal for replacing the Minister with the Internal Information Review Officer, we propose that every where there is a reference to the Minister in the part dealing with internal review, we substitute Internal Information Review Officer.

 

Beyond this, only a reformulation of subsection (3) of section 39 in the current Bill thus:

 

(3)     The Internal Information Review Officer shall conduct the review in camera only where the demands of confidentiality require that the review be so heard.

 

Commentary: This new formulation is in our view consistent with the fundamental principle of openness and transparency which underpins any genuine right to information legal regime.  Holding review proceedings in camera as a matter of course only reinforces the culture of secrecy that the RTI law seeks to transform.  This is especially the case as subsection (4) provides against disclosing any information which is exempt during review proceedings.  However, provision is made to cater for situations where there is a legitimate need for proceeding of the internal review be held in camera.

 

Decision of Internal Information Review Officer

 

Refer to section 40 in the current Bill.

 

(1)     The Internal Information Review officer shall notify the applicant of his decision on the application within twenty-one working days of receipt of the application for a review.

 

Commentary: The phrase ‘if there is no delay or other default on the applicant’, in the current text of the Bill, has been deleted so that the law can be seen as a way of encouraging review and dealing with the applications on their merit.

 

(2)     The notice shall state:

 

(a)    the reason for the decision and the provision of the Act relied on; and

(b)   where the review is dismissed that the applicant may file an appeal to the  Commission established under section …. of this Act.

 

Commentary: We propose here the Independent information Commission instead of an Appeals Commission.  We are also of the considered view that provision of section 40 (2) of the current Bill which provides that where the review is dismissed, the applicant’s recourse is to file a application for judicial review in the Supreme Court is seriously restrictive and will tend in practice to stultify the right of judicial review in our courts.  This is so because in every situation that the review application is dismissed because the information requested for is adjudged exempt information, it would be because of national security or other public interest considerations.  This will mean that in every situation where a review is unsuccessful, the applicant’s only recourse is to the Supreme Court.  Most Ghanaians would not have the money, determination, nor resources to apply for judicial review to the Supreme Court.  The result is that many Ghanaians would be denied the opportunity to assert their right to information.  What is more, Article 135 (1) and (2) of the Constitution that this section purports to rely upon does not require that appeals against the decision of the internal review process should be lodged in the Supreme Court.  Were this to be the case, there would be no need for internal review in the first place, as any dispute over exempt information,  would, by this interpretation of Article 135 (1) and (2), be referred to the Supreme Court for judicial review. Fortunately, this reading of Article 135 is with respect not correct.  Article 135 (1) and (2) deals with situations where disputes arise in court as to whether an official document should be produced in court because its production or disclosure of its contents will be prejudicial to the security of the State or injurious to the public interest.  Article 135 does not deal with where the dispute arises outside the context of court proceedings.   Thus, it would be constitutional where such a dispute arises at the internal review stage for the aggrieved applicant to appeal to the Information Commission for review.  It is only where the applicant or the public or private agency, as the case maybe, is aggrieved by the decision of the Information Commission that an application for judicial review should lie to the Supreme Court.  This way, the applicant who is aggrieved with the decision of the internal review process will, in the first instance, be afforded a ready, simple, not-costly or legalistic and independent forum to ventilate his grievance against a dismissal of his review application.

 

(3)     An applicant aggrieved with the decision of the Internal Information Review Officer may appeal to the Information Commission established under section … of this Act within sixty days of receipt of the decision.

 

H.    Appeals from the decision of an information officer of a private body/agency

 

An aggrieved applicant shall apply to the Information Commission established under section … of this Act against any decision of an information officer of a private body/agency within sixty days of receipt of the decision of the information officer.

 

Commentary: In the case of private bodies/agencies, we propose that there should be no internal review.

 

FEES

 

Commentary: We propose that the provisions on fees regime should be in one part, instead of being scattered in different parts of the Bill and in some instances appearing to be inconsistent with each other.  Some provisions suggest that it is the body/agency that determines the fees to be charged, while other provisions appear to vest in the Attorney-General the power of establishing a scale of fees for all public bodies/agencies. By bringing together provisions on fees under one part, the fees regime would become clearer to the ordinary person, the inconsistencies and tensions in the provisions will become apparent and be readily corrected.

 

Furthermore, in line with international best practice and human right norms, it is proposed that the fees should be limited to the actual cost of reproduction of the information requested for.  Costs should not be an impediment to the enjoyment of an essential fundamental human right such as the right to information and should not be permitted to deter applicants. This also means that the amount of time it takes an agency to search for, and retrieve information requested shall not be at the cost of the innocent applicant, who can hardly be held responsible for the poor system of record keeping, maintenance and retrieval of the body/agency concerned.

 

Finally, the requirements of advance deposits and application fees; and also the provision that where the application is rejected the applicant shall pay for the cost of dealing with application, should all be deleted.

 

The complex contradictory fees structure in the current Bill can be found in the following sections:

 

Section 19(1) (f) – an application shall be accompanied with the relevant fee.  What ‘the relevant fee is remains a mystery.

           

Section 23 (3) (e) – where the information officer decides to give access, the notice shall state the fee to be paid by the applicant.

 

Section 23 (4) (d) - Where the agency decides to refuse access, the notice shall state the fees payable for dealing with the application.

 

Part of section 23 (6) refusal on grounds of failure to pay deposit fee

 

Section 25 (1) – Where the costs of the agency for dealing with an application  are likely to exceed the amount of the application fee the agency may request  the applicant to pay a reasonable deposit determined by the agency.

 

25 (5) - An agency may refuse to give access to information if a fee or advance deposit payable is not paid within the period notified to the applicant.

 

Section 27 (1) – An agency may refuse to continue to process an application where the agency has by notice demanded payment of an advance deposit in relation to the application and the4 applicant has not paid the deposit within the period specified in the notice.

 

Section 50 (1) - An applicant seeking an access to information under this Act shall pay the fee or charge determined b the minister for justice;

 

Section 50 (2) - The Minister for justice shall specify by legislative instrument issue relevant guidelines to the agencies.

 

            Section 50 (3) – the guidelines shall specify the amount payable for

                       

(a)   A search for every hour or fraction of an horn of a manual search required in excess of two hours to locate the information;

(b)   The computer access and other costs incurred in locating, retrieving, processing and photocopying the information;

(c)    The cost of preparing the information for disclosure; and

(d)    postage cost

 

In pace of these different sections on fees we propose the following:

 

A.    Fees chargeable by public or private body/ agency

 

(1)     An applicant under this Act in respect of information held by a public  or private body/agency shall not be required to pay any fee:

 

(a)    on lodging an application for information;

(b)   in relation to time spent by a public or private body/agency  in searching for the information requested;

(c)    in relation to time spent by the public or private body/agencyin examining the informationto determine whether it contains exempt informationor deleting exempt informationfrom a document; or

(d)   in relation to time spent or costs incurred by the public or private body/ agencyin transcribing the information.

 

(2)     Subject to subsection (3), the public or private body/agencymay charge the applicant a reproduction feeconsisting of the reasonable reproduction costs incurred by the public body/agency and for sending the information to the applicant.

 

(3)     No reproduction feeshall be payable:

 

(a)    for reproduction of personal information of the applicant, or where the application is made on behalf of another person, the personal information of the person on whose behalf the applicationis made;

(b)   where the public agency/ bodyhas failed to comply with the time for responding to an applicationunder section … or where an extension of time has been made under section … within that extended period of time; or

(c)    where the applicant is an indigent.

[Drawn largely from the AU draft Model law as well as portions of the Mexican law and Indian RTI Act]

 

B.     Fees not part of the Consolidated Funds

 

(1)     The fees and charges received by a public body/agency under this Act shall, in accordance with Article 176 (2) (b) be retained by the body/agency in a specified account to be used to defray the expenses incurred by the body/agency in the performance of its functions under this Act and shall not form part of the Consolidated Fund.

 

(2)     The Minister for Justice shall, in consultation with the Information Commission, by legislative instrument, establish the accounting procedures for the management of these fees.

 

ESTABLISHMENT OF AN INDEPENDENT INFORMATION COMMISSION

 

A.    Establishment of an Information Commission

 

(1)     There is hereby established an I Information Commission, referred to in this Act as “the Commission”.

 

(2)     The Commission shall be a body corporate with perpetual succession and a common seal and may sue and be sue in its corporate name.

 

(3)     The Commission may for and in connection with the discharge of its functions purchase, hold, manage, or dispose of any movable or immovable property and may enter into such contracts and transaction as may be reasonably related to its functions.

 

B.     Functions of the Commission

 

The Commission shall:

 

(1)     be responsible for the promotion and effective implementation of the right to access of information under this Act and may for this purpose issue written guidelines and directives to all public and private bodies/agencies subject to the provisions of this Act;

(2)     monitor and report on compliance by all bodies/agencies subject to the provisions of this Act;

(3)     make recommendations for reform both of a general nature and directed at specific agencies;

(4)     carry out nation-wide public education and popularization of the provisions of this Act by disseminating or publicizing the requirements of this Act and the rights of the individual under it;  and to that end collaborate with the National Commission for Civic Education, the Commission for Human Rights and Administrative Justice and identifiable civil society stakeholders/organizations;

(5)     receive, inquire into and determine appeals/complaints from aggrieved applicants against the decision or other act of commission or omission of any body/agency subject to this Act;

(6)     conduct audit compliance with the provisions of the Act by private and public bodies/agencies;.

(7)     carry out investigations on its own initiative or upon receipt of an appeal or complaint from the public, into any matter  related to the enforcement of the provisions of this Act;

(cool.gif     submit before Parliament not later than the 30th June of each year an annual report of its activities and compliance by all agencies subject to this Act;

(9)     from time to time lay before Parliament such other reports as it deems appropriate and Parliament may debate the report and pass the resolution that it considers fit.;

(10)train information officers and such other relevant officers on their obligations and powers under this Act;

(11)refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences committed under this Act for investigation and prosecution;

(12)initiate research to be conducted into matters affecting the purposes of this Act;

(13)take such other appropriate measures as the Commission considers necessary to give effect to the provisions of this Act.

 

C.    Independence and autonomy of the Commission

 

(1)     Except as otherwise provided by the Constitution or by this Act, the Commission shall not be subject to the direction or control or any person or authority in the performance of its functions.

 

(2)     The Commission shall develop its own rules and procedures to regulate its affairs through a process of public consultation.

 

D.    Composition of the Commission

 

(1)     The Commission shall consist of five (5) or seven (7) members, one of whom shall be the chairperson who shall be appointed in the following manner:

 

(a)    The President shall issue a public call for nominations.

(b)   The nominations and interview process shall be transparent and include public participation.

(c)    The selection and appointment shall be completed within … months of the call for nominations.

(d)   The President shall appoint the Information Commissioners, including the chairman thereof upon the recommendation of a committee made up of:

 

(i)       One representative each from the majority and minority in Parliament;

(ii)     One representative from the Ghana Bar Association;

(iii)   One representative from Organised Labour;

(iv)    One representative from the Association on of Industries of Ghana and the Ghana Chamber of Commerce

(v)     One representative from the Ghana Journalists Association;

(vi)   One representative from the Network of Women’s Rights;

(vii)One Representative from the Christian Group (the National Catholic Secretariat, the Christian Council and the Pentecostal Council);

(viii)              One representative from the Federation of Muslim Councils and the Ahmadiyya Missions.

 

E.     Qualification of members of the Commission

 

(1)     The Information Commissioners shall:

(a)    be citizens of Ghana;

(b)   be fit and proper persons appropriately qualified for appointment;

(c)    be recognized human rights advocates;

(d)   be independent, impartial and accountable; and

(e)    have demonstrable knowledge in law, access to information, transparency, record-keeping and classification, and public and corporate governance.

 

(2)     A person shall not be qualified to be appointed an Information Commissioner if he/she:

 

(a)    has within the past five years held an office or is an employee of a political party or holds a political appointment in government or is a Member of Parliament;

(b)   has been convicted for high crime under the Constitution or high treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or for any offence punishable by death or by a sentence not less than ten years;

(c)    has been adjudged or otherwise declared bankrupt or insolvent under the laws of Ghana and has not been discharged;

(d)   is of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or

(e)    has a record of wrongful and deliberate destruction or falsification of official information.

 

F.     Tenure of office of members

 

(1)     An Information Commissioner shall hold full-time office on the Commission for a term of five years, subject to reappointment for one further term of four/five years.

 

(2)     An Information Commissioner must not be appointed for any further term after the expiry of the term of reappointment in subsection (1).

 

(3)     The President may appoint an Interim Information Commissioner for a period not exceeding six months in consultation with the Majority and Minority leaders of Parliament if:

 

(a)    any Information Commissioner is incapacitated, removed from office or resigns; or

(b)   in the period immediately after the tenure of an Information Commissioner has ended.

 

(4)     The President shall, subject to the approval of a two-third majority of Parliament, have the power to terminate the appointment of an Information Commissioner where:

 

(a)    the person is mentally or physically incapable of performing the functions and duties of the role;

(b)   the person is insolvent; or

(c)    stated misconduct has been established.

(d)   stated misconduct has been established.

 

(5)     During their term of office, an Information Commissioner and Interim Information Commissioner must not occupy or engage in any other activity, profession or trade outside their office for financial gain.

 

G.    Remuneration

 

(1)     The Chairperson shall receive a salary equivalent to that of a Justice of the Court of Appeal/Supreme Court.

 

(2)     The other Information Commissioners shall receive a salary equivalent to that of a Justice of the High Court/Court of Appeal.

 

(3)     The Chairperson and Information Commissioners shall receive reasonable travelling and living expenses incurred in the course of the conduct of their duties.

 

(4)     The Chairperson and Information Commissioners shall respectively be entitled to the equivalent pension benefits as that of the Justice of the Court of Appeal/Supreme Court and High Court/Court of Appeal respectively, provided that where any Commissioner already enjoys public pension the pension he or she already enjoys shall be deducted from his or her pension as a Commissioner.

 

(5)   Any other issues relating to the payment of salaries, expenses, pensions or compensation shall be guided by legislation relevant to these issues applicable within the public service and the judiciary of the Republic.

 

H.    Appeals or complaints to the Commission

 

(1)     A person who has made a request for information may apply to the Commission  for a decision that a public or private body/agency subject to this Act has failed to comply with any obligation placed on it in respect of applications for disclosure of information , including:

 

(a)    refusing to indicate whether or not it holds a record or to communicate information;

(b)   failing to respond to an application for information within the time  limits established under this Act;

(c)    failing to provide notice in writing of its response to a request for information in accordance with this Act;

(d)   charging an excessive fee;

(e)    failing to communicate information in the form requested for without any

justifiable reason.

 

(2)     An appeal shall lie to the Commission

 

(a)    in the case of the office of the President, the Vice President and the Cabinet, after the Secretary to any of these institutions dismisses an application by the issue of a signed certificate in accordance with section…..

(b)   in the case of any other public agency, where the Internal Review Information Officer dismisses an application for internal review;

(c)    in the case of a private agency, where the agency refuses to grant application for disclosure of information.

 

(3)     An appeal to the Commission shall be lodged at the Commissionsixty days after the decision appealed. 

 

Decision on Appeal or Complaint

 

(1)     The Commissioner shall, subject to sub-section (2), decide an application made under section… as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body/agency an opportunity to provide their views in writing.

 

(2)     The Commissioner may summarily reject applications: –

(a)    which are frivolous, vexatious or clearly unwarranted; or

(b)   where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public or private body.

 

(3)     In any application under this section, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under this Act.

 

(4)     In enquiring into any complaint or appeal before it, the Commission shall have  power similar to the High Court in respect of the following matters;

 

(a)    summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath or affirmation to produce the relevant documents or things;

(b)   requiring discovery and inspection of documents or things;

(c)    receiving evidence on affidavit;

(d)   requisitioning any public record or copies thereof from any office;

(e)    any other matter which may be prescribed.

 

(5)     The Commission may, during investigation pursuant to sub-section (4), examine any record to which this Act applies, and no such record shall be withheld from the Commission on any grounds. 

 

(6)     Where necessary as a result of the confidentiality of the record in issue, the Commission may sit in camera.

 

(7)     In its decision pursuant to sub-section (1), the Commissioner may: –

 

(a)    reject the application;

(b)   require the public or private body/agency to take such steps as may be necessary to bring it into compliance with its obligations under this Act;

(c)    require the public or private body/agency to compensate the complainant for any loss or other detriment suffered; and/or

(d)   in cases of egregious or willful failure to comply with an obligation under this Act, impose a fine on the public or private body/agency not exceeding ….penalty points.

 

(cool.gif     The Commission shall serve notice of its decision, including any rights of appeal, on both the complainant and the public or private body/agency.

 

Appeal from the Commission Decisions and Orders

 

(1)     The complainant or the relevant public or private body/agency may, within 45 days, appeal to the Supreme Court for a full review of a decision of the Commission pursuant to sections … or…, or an order pursuant to section….

(2)     In any appeal from a decision pursuant to section .., the burden of proof shall be on the public or private body/agency to show that it acted in accordance with its obligations under section …….

 

Binding Nature of Commissioner’s Decisions and Orders

Upon expiry of the 45-day period for appeals to the Supreme Court pursuant to section …, the Commission shall certify in writing to the court any failure to comply with a decision pursuant to section …… or an order pursuant to section  and the court shall consider such failure under the rules relating to contempt of court

 

I.       Other Staff of the Commission

The Commission shall appoint such other officers and employees as are reasonably necessary for the effective performance of its functions, including, persons with the requisite qualifications in record creation, maintenance and retrieval, in law, investigations and having knowledge and expertise in implementation of the provisions of this Act.

 

J.      Funds of the Commission

The administrative expenses of the Information Commission, including the salaries, allowances and pensions payable to or in respect of persons serving with the Commission shall be charged on the Consolidated Fund andParliament shall appropriate the budget presented by the Commission annually upon its presentation.

 

K.    Protection of the Commission

 

(1)     No criminal or civil proceedings shall lie against the Commission or against any person acting on behalf of or under the direction of the Commission, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Act.

 

(2)     For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice or in bad faith.

[Drawn from Article 19 Model Law]

 

(3)     Personnel who disclose wrongdoing within the Commission shall not be subject to any detriment in the course of their employment by reason of the disclosure.

[Drawn from the AU Model Law]

 

L.     Code of conduct

 

(1)     The Commission shall develop its own code of conduct after consultation with the Minister for Justice and the general public.

(2)     The Commission may after consultation with the Minister of Justice and the public, review such code of conduct from time to time.

(3)     Any code of conduct issued by the Commission or amended after review by the Commission shall be made public within 30 days of its confirmation.

[Drawn from the AU Model and the Mexico FOI law]

 

M.   Engagement of experts

 

(1)     The Commission may, whenever it deems appropriate, convene a panel of specialist experts or obtain the cooperation of any body for the purposes of decision making, issuing recommendations or other work undertaken under this Act.

(2)     The terms of engagement of such temporary services are to be determined by the Commission.

(3)     Any panel of experts convened must include representation from appropriate civil society organizations.

 

N.    Regulation of procedure

(1)     Subject to this Act, the Commission, in consultation with the Minister for Justice shall determine the procedure to be followed in the exercise of any power, the performance of any duty or function of the Commission under this Act.

(2)     The Commission may, from time to time, after public consultation, review the procedure referred to in subsection (1).

 

LIMITATION OF PERIOD OF EXEMPT INFORMATION

 

Commentary: Refer to Section 57 in the current Bill. Subsection (1) should be retained while sub-section (2) should be amended. The section should read as follows:

 

(1)     Information classified as exempt information under sections … to … in respect of public bodies/agencies ceases to be exempt information on the expiry of twenty-five years calculated from the end of the calendar year in which the information into came existence.

 

(2)     On the expiry of the period specified in subsection (1), a person may seek access to the information and the public body/agency which has custody of the information shall give access in accordance with the procedure established under this Act, provided however that where disclosure of the information will endanger the life or physical safety of an individual, the information shall not be disclosed. 

 

CHIEFTAINCY INSTITUTION

 

Commentary: The Chieftaincy institution is a political institution, and thus a public body and not a private body.  Furthermore, Article 36(cool.gif of the Constitution expressly provides stools and skins are accountable as fiduciaries to their people as follows:

 

“36 (cool.gif The State shall recognize the managers of public stool and family lands as fiduciaries charged with the obligation to discharge functions for the benefit of the people of Ghana, of the stool, skin or family concerned and are accountable as fiduciaries”.

 

Accordingly, we propose that stools and skins should be accountable for the income they receive from the management and or use of stool lands and from public donations and grants to stools and skins for the development of their communities.

 

We accordingly propose the following new section:

 

(1)     Every member of a stool or skin shall have the right of access to information  from his/her stool or skin in respect of income or other resources received from the management, alienation or use of stool land  and for donations made to the stool or skin for the development of the community which the stool or skin represents.

 

(2)     The National House of Chiefs shall in consultation with the Commission established under this Act make regulations and established procedures which every stool and skin shall comply with in granting access to information to members of their community on the use of resources derived from the management and use of stool lands and monies and other resources donated to stools and skins for the development of their communities.

 

 

OTHER ISSUES THAT DEMAND THE ATTENTION OF THE SELECT JOINT COMMITTEE

 

In addition to the issues identified for the zero draft, we believe there are certain provisions of the current text which though are not the specific subject of this zero draft, ought in our respectful view, to be improved upon, or where there are omissions filled in order that the full objects of the right to information may be secured to the people and our Republic.  With respect we proceed to consider them.

 

TIMELINES FOR DISCLOSURE OF INFORMATION

 

Commentary: This issue has been a question of widespread concern among the stakeholders and was in particular a major subject of critical comment during the nation-wide consultation of the Parliamentary Select Joint Committee.  Unfortunately however, it seems to have escaped the review meeting as one of the critical issues that ought to be flagged for further consideration.   This is because the timely disclosure of information is fundamental to the efficacy of any right to information legislation.  Regrettably the time-lines for disclosure under the current Bill are unduly long and are likely to have the direct effect of undermining this right.  Currently, by virtue of the combined effect sections 23(1) and 26 (1) of the Bill, it may take 151 days, that is, over five months, for an application for information to be granted.  And yet this would be perfectly lawful!  Neighbouring Nigeria’s FOI law provides for 7 days for responding to applications with an extension of a further 7days.   Liberia, which just recently emerged from a brutal civil war provides in its Freedom of Information Act, a maximum period of 30 days for every public and private body to respond to an application provided that this period may be extended only once upon showing reasonable cause.  We are therefore, with respect, taking this opportunity flag the question of timelines for the critical consideration of the Select Committee.

 

We propose the following:

 

Section 23 (1) be amended as follows;

(1)     Where an application for access is received by an agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

Section 23 (3) be retained.

 

Section 26 (2) be amended as follows:

(2)     The period of extension shall not exceed twenty-one days from the date when a decision on the application should have been made.

 

Commentary: In any event there is no justification for a further extension by the Minister in charge of the agency by a total of three months under section 26 (1) and that part should definitely be deleted.

 

LONG TITLE OF THE ACT

 

We propose that the long title of the Act be amended as follows:

 

“An Act to provide for the implementation of the right to information held by public  and private agencies/bodies, subject to exemptions that are necessary and consistent with the protection of the public interest and the rights of the individual in a democratic society; to foster a culture of transparency and accountability in public affairs, to contain corruption, promote popular participation in governance, to place obligation on public and private agencies/bodies to provide information proactively and in response to a formal request in a timely, inexpensive and reasonable manner and to provide for related matters”..   

 

RIGHT OF ACCESS TO INFORMATION

 

We propose the following amendment of section 1in the current Bill.

 

(1)     Every person shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society. 

 

Commentary: This is a direct reproduction of the constitutional guarantee of the right to information.  We propose that the text begins with an affirmation of the specific text of Article 21 (1) (f).

 

(2)     Subject to the Constitution and the provisions of this Act, every person shall have the right of access to information or part of the information in the custody or under the control of a public body/agency or a private body/agency subject to this Act.

 

(3)     The exercise of the right under subsection (2) is subject to the exemptions specified in sections … to ….

 

Commentary: Note that we have combined some of the exemptions into one section and so the numbering will change if our proposal is considered acceptable.

 

(4)     Nothing in this Act is intended to prevent or discourage public or private bodies/agencies from publishing or disseminating and giving access to information, (including information exempt under the provisions of this Act) where they can properly do so or are required by law to do so.  [Drawn from the Draft Model Law for AU Member States] 

 

Commentary: This is to ensure that notwithstanding the general provisions on exempt information under the RTI law, where some specific law requires disclosure or where a public agency can properly and lawfully disclose information, the provisions on exempt information do not become a barrier to disclosure.

 

DUTY ON RECORD-KEEPING BY PUBLIC AND PRIVATE BODIES/AGENCIES

 

We propose a new section which underscores the fundamental obligation of public and private bodies under this Act to create and keep records thus:

 

“Every public or private body subject to this Act shall have the obligation to create, maintain and preserve any information it generates or which comes into its custody in a manner that facilitates easy retrieval and access in accordance with guidelines of the Commission”.

 

GUIDE ON HOW TO USE THE ACT

 

We propose insertion of a new section before section 3 of the current Bill on the need for the Information Commission to publish and disseminate a guide on how to use the Act.

 

(1)     The Information Commission established under section … of this Act shall within eighteen (1cool.gif months after the commencement of this Act compile and disseminate in English, and other Ghanaian languages, and in a simple and user-friendly form, a guide as to how to use this Act.

 

(2)     The guide must, without limiting the generality of subsection (1), include a description of:

(a)    the objects of this Act;

(b)   the postal and street address, phone and fax number and, if available, the electronic mail address of:

(i)            the information officer of every public or private body/agency; and

(ii)          every deputy information officer of every public body/agency appointed under this Act; and

(iii)        the website of the public or private body/agency;

 

(c)    such particulars of every public or private body as are practicable;

(d)   the manner and form of an application  for:

(i)       access to a record of a public body contemplated in section …; and

(ii)     access to a record of a private body contemplated in section …

 

(e)    the assistance available from the information officer of a public or private body/agency in terms of this Act;

(f)    the assistance available from the Commission in terms of this Act;

(g)   all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

(i)       an internal review; and

(ii)     an application to the Commission against an Internal Information Review Officer of a public body/agency or an information officer of a private body/agency;

 

(h)   the provisions of sections 3 (current) and …  requiring a public body/agency and private body/agency, respectively, to compile a manual, and how to obtain access to a manual;

(i)     fees to be paid in relation to requests for access; and               

(j)     the regulations made in terms of section 64 of the current Bill.

 

(3)     The Information Commission must, if necessary, update and publish the guide at intervals of not more than two years.

 

PROACTIVE DISCLOSURE

 

We propose that the current section 3 of the Bill which places on the responsible Minister the obligation to publish a manual listing the agencies under the Ministry and which specifies the list of facts and matters to be disclosed in the Manual to published by every Minister should be amended as follows:

 

(1)     The Minister responsible for a public body/agency shall, within twelve months from the date of coming into force of this Act, and every twelve months after that date, compile and publish, after consultations with the Information Commission established under this Act, the Public Services Commission and the Head of Civil Service, and in accordance with the guidelines issued by the Information Commission under section ….., an up-to-date official information compilation in the form of a manual, listing the public bodies/agencies that are under the Ministry.

 

(2)     The manual shall contain:

 

(a)    a description of the organizational structure and functions of each body/agency, including details of the responsibility of each division or branch of each public body/agency;

(b)   the names salaries and dates of employment of all employees and officers of the public body/agency;

(c)    the channels of supervision and accountability in a decision-making process;

(d)   the norms set by the public body/agency for the discharge of its functions;

(e)    the budgets allocated to each public body/agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made;

(f)    particulars of recipients of concessions, permits, grants, licences, contracts, authorization granted by the public body/agency;

(g)   a list of materials containing information relating to any grant or contract made by or between the public body/agency and another public/body agency or private body/agency;

(h)   a list of the type of information that may be purchased or inspected free of charge or subject to a fee and fee payable in respect of an access to information specified by the Commission under section …..

(i)     the name, telephone number, fax, e-mail and postal address of the information officer of the agency or designated officer or deputies thereof, where necessary, of the public body/ agency to whom a request for access maybe made;

(j)     the place in the agency where information is available under this Act or any other enactment, can be found or made available, including its website, if any;

(k)   the arrangements made and procedures established in the agency that will enable members of the public participate in the formulation of the policies of the agency;

(l)     the policies and decisions of the agency and the reasons for the policies;

(m)the arrangements made or procedures established by the agency to enable a member of the public seek amendment of the member’s official record with the agency.

[We have been guided by provisions of the Ghana Bill, the South African, Nigerian, and Liberian FOI laws, AU Draft Model law and Article 19 Model Law]

                                                        

GENERAL AND MISCELLANEOUS PROVISIONS

 

A.    Deemed refusal

 

We also propose a new section on ‘Deemed Refusal’ to be inserted before section 27 of the current Bill.

 

Deemed Refusal – General and miscellaneous provisions affecting public and private bodies/agencies under this Act

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…within the extended period of time, the information officer shall be deemed to have refused the application.

 [Drawn from the AU Model law]                

 

 

B.     Duty of every public and private body/agency to publish and disseminate manual

 

Commentary: In the spirit of proactive disclosure, every public and private body/agency should have a duty to publish and disseminate its manual. We propose that a section on this duty is included under the General and Miscellaneous part of the Bill as follows:

 

Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

 

(a)    a description of its structure, functions, duties and finances;

(b)   relevant details concerning any services it provides directly to members of the public;

(c)    any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

(d)   a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a  request for information;

(e)    a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

(f)    any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

(g)   the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

(h)   any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.

 

“publish” means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination.

[Add to the definition section]

 

 

C.    Primacy of the Act

 

We propose that section 66 in the current Bill should be designated:

 

“Primacy of Act and Modification of Existing Enactments”

 

[This is drawn from the AU Model Draft law]

 

We also propose further that instead of the text of the current clause 66, we substitute a new clause as follows;

 

(1)     This Act applies to the exclusion of any provision in any other legislation or regulation that prohibits or restricts the disclosure of informationof a public body/agency or a private body/agency.

 

(2)     Nothing in this Act shall limit or otherwise restrict any other legislative requirement, policy or established practice for a public agency or a private agencyto disclose information.

 

Commentary: This provision is common to right to information legislation.  The purpose is to ensure that where a specific law mandates the disclosure of information that might otherwise be exempt under the general provisions of this Act, the specific provision for disclosure is complied with. [Drawn from the AU Model Draft law and Article XIX Model Law]

 

Training of Officials

 

We propose to add a new provision as follows under the General and miscellaneous part.

 

“Every public and private body/agency subject to this Act shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act”. [Drawn from Article XIX Model Law]

 

 

TRANSITIONAL PROVISIONS

 

(1)     Every public or private body/agency subject to this Act shall designate information officers and deputy information officers, where necessary, train and equip them with the necessary resources and expertise within …. months after this Act comes into effect and they shall start functioning within a further ….months.

 

(2)     Every public or private body/ agency shall establish effective systems of record creation, maintenance, preservation and retrieval to facilitate the object of this Act and shall complete the organization of their archives within the first … month of the coming into effect of this Act.

 

(3)     The nomination of the first ….Commissioners shall take place not later than …. months after the law come into effect.  Two/three of the Commissioners shall end their tenure in …years and they may be re-appointed for an additional term, of …years.

 

(4)     Individuals may present applications for access to information or access to and correction of personal information one year after this Act comes into effect.                                                                                     

 

(5)     As soon as possible but in any event within eighteen months of the coming into effect of this Act, all public bodies/agencies and private bodies/agencies shall be required to prepare information manuals to be deposited with the Commission and in the designated places within the public and private bodies/agencies and also on their websites, if any, in conformity with sections … and …. of this Act..

 

(6)     The provisions of this act will become fully operational............months after the coming into effect/ passage into law of this Act.

 

(7)     For purposes of the current section 23, for a period of twelve months from the time the provisions of this Act becomes fully operational every reference to fourteen working days or fourteen days shall be construed to mean thirty days and every reference to twenty-one days shall be construed as forty-two days                         

 

(cool.gif      The Attorney General, in consultation with the Information Commission, shall, within eighteen months of the coming into effect of this Act, review all laws restricting access to information, including the State Secrets Act, 1962 (Act 101), the Civil Service Act, 1993 (PNDCL 327) and the regulations pursuant thereto

 

 

and the Oaths Act1972 (NRCD 6), to bring them into conformity with the provisions of the Constitution and this Act.

 

SCHEDULE

Form of oath or affirmation to be made by Commissioners (Section …..)

 

I, ………:………. …..having been appointed the Chairman of the Information Commission/ a member of the Information Commission do  (in the name of the Almighty God) (solemnly affirm that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitutions and the laws of the Republic of Ghana.  (So help me God).

 

To be sworn before the president, the Chief Justice or such other person as the Chief Justice may designate.

 

 

 

Akoto Ampaw

6th May 2012

Accra

 

 

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RTI Bill

An Option Paper on RTI Bill!

Posted by admin on 2012-07-18 16:17:58 UTC

 

THE GHANA RIGHT TO INFORMATION BILL, 2010

AN OPTION PAPER/ZERO DRAFT

 

Introduction

The Ghana Right to Information Bill, 2010 seeks to provide for the implementation of the Right to Information guaranteed under Article 21(1)(f) of the Constitution of the Republic of Ghana, 1993. The Bill was tabled before Parliament on February 5, 2010 and it was specifically allocated to the Parliamentary Select Joint Committees on Communications; and Constitutional, Legal and Parliamentary Affairs to scrutinize and come up with recommendations. The Joint Committees held public consultations on the Bill between July and August 2011 in which they gathered various views on the content of the Bill. In March 2012, the Joint Committee held a review meeting at which it was decided that certain key issues within the Bill needed to be re-visited or improved upon in order to bring the Bill in conformity with international human rights standards and best practices on the right to information. It is in respect of this decision that we were requested to produce a zero draft with regard to the following specific areas/issues identified by the Joint Committee.

 

               i.          Exemptions

             ii.          Private bodies

           iii.          An Independent Information Commission

           iv.          Fees

             v.          Accountability measures for collecting and managing internally generated funds

           vi.          Appeal process; and

         vii.          Declassification of information.

Sources

In producing this zero draft, we have taken into account the reputation of Ghana as a beacon of democracy in Africa and the fact that many African countries look to Ghana for good example to emulate.  A Ghana Right to Information Law is thus most likely to be a reference source for other African countries struggling to build democratic institutions of governance and a culture of democracy. We have also taken into account the fundamental principles underpinning any genuine and effective right to information legislation which include, transparency, openness, effective participation of the population in the processes of governance, accountability and the curtailment of rank corruption, the promotion of social justice and the delivery of social services through the role the right to information plays in giving expression to other rights. Then have been the views expressed by Ghanaians across the length and breadth of the country during the nation-wide consultations held by the Parliamentary Select Joint Committee. We have also considered the following documents as a guide to the zero draft.

 

a)         The Commentary of the Coalition on the Right to Information, Ghana.

b)        The Model Draft Law for AU Member States on Access to Information prepared under the auspices of the Special Rapporteur on Freedom of Expression and Access to Information.

c)         The Declaration of Principles on Freedom of Expression in Africa by the African Commission on Human and Peoples’ Rights.

d)        The Public Right to Know Principles of Article X1X

e)         A Model Freedom of Information Law by Article XIX, endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression,

f)         The Freedom of Information Act of the Republic of Liberia, 2010.

g)        The Freedom of Information Act of the Federal Republic of Nigeria, 2011.

h)        The Promotion for Access to Information Act of the Republic of South Africa, 2000.

i)          The India Right to Information Act, 2002.

j)          The UK Freedom of Information Act, 2000.

k)        The Mexican Federal Transparency and Access to Public Government Information Law, 2002.

 

PROPOSED AMENDMENTS TO THE GHANA RIGHT TO INFORMATION BILL- ZERO DRAFT

 

GENERAL EXEMPTIONS

 

A.    Refusal

A public or private body/agency may refuse to grant access to informationonly if the information falls within an exemption provided for in this Act.[Drawn from the AU Draft Model Law]

 

B.     Public interest override

(1)     Notwithstanding any of the provisions of this Act on exemptions, information is not exempt and the information officer must grant a request for access to information if the disclosure of the informationwill reveal or reveals evidence of:

 

(a)    a contravention of, or failure to comply with a law; or

(b)    an imminent and serious risk to public safety, public health or the environment;

(c)    miscarriage of justice;

(d)   abuse of authority or neglect in the performance of official function

(e)    abuse of  authority or neglect in the performance an official duty or

(f)    other legitimate public interest so requires

 

and the benefits of disclosure outweigh the harm or danger that could occur in the event of disclosure

 

Commentary:We have reviewed slightly the original section 18 by including ‘information that ‘will reveal’and also a general ‘legitimate public interest consideration’. This with respect is consistent with international best practice and human right norms that subjects exemptions to a general public interest override. Currently, section 18 subjects exceptions only to the specific instances mentioned in sub-clauses (a) to (e).  As is well established in the law, public interest is not a closed category and the danger of a limited public interest override clause is that it may omit an unanticipated situation where the public interest requires that the exemption give way to disclosure.

 

(2)     An information officer must consider whether subsection (1) applies in relation to any information requested before refusing access on the basis of the          information being exempt under the provisions of this Act. [Drawn from the AU Draft Model law]

 

C.    Classified Information

(1)     The fact that any information in the custody of a public body/agency is kept by that body/agency under security classification or is a classified document within the meaning of the Official Secrets Act does not preclude it from being disclosed pursuant to an application for disclosure thereof under the provisions of this Act, but in every case the public body/agency to which the application is made shall decide whether such information is of a type referred to as exempt information under this Act

 

(2)     If the public body/agency to which the application in subsection (1) is made decides that such information is not a type mentioned in the sections referred to in subsection (1), access to such information shall be given to the applicant, notwithstanding its categorization as classified security information.

[Drawn from the AU Draft Model law]

 

Commentary: Sometimes, attempts are made to overreach the provisions of a right to information legislation by the simple sleuth of hand of classification as “top secret’, for your eyes only’, ‘highly confidential’ etc.  What this provision does is to ensure that officials do not by mere form of classification pre-empt the need to show whether the information fails within the categories of exemption specified in this Act.

 

D.    Information already available to the public

Notwithstanding any provision relating to exempt information, a body may not refuse to disclose information where the information is already publicly available.

 

We propose all the above should precede section 6 and other provisions on exemptions so that the current impression that the Act is more about exemptions than the right to, and obligation to disclose, information is avoided.  These provisions preceding the exempt provisions will thus give the positive emphasize that the law is about the right to information and not otherwise. The sections will accordingly be renumbered.

 

E.     Information from the office of the President, the Vice-President and the Cabinet

(1)     Information is exempt from disclosure:

 

(a)      if it is for submission or has been submitted to the office of the President or of the Vice-President or to the Cabinet; or

(b)       if it contains matters the disclosure of which would reveal information concerning opinion, advice, deliberation, recommendation, minutes or consultations made or given to the President, the Vice-President  or Cabinet

and disclosure would or is likely:

 

(i)     to cause material prejudice to the effective formulation or development of government policy;

(ii)   seriously to frustrate the success of a policy, by premature disclosure of that policy;

(iii)significantly to undermine the deliberative process in the office of the President, Vice-President or the Cabinet by inhibiting the free and frank provision of advice or exchange of views;

(iv)to cause material prejudice to national security.[Addition to comply with the harm test]

 

(2)     Where information requested is exempt by reason of any of the grounds/provisions set out in sub-section (1), the Secretary to the President or the Secretary to the Vice president or the Secretary to the Cabinet or the National Security Coordinator shall state so by a signed certificate giving reason why it is exempt and, subject to the right of appeal to the Information Commission under section …., such certificate shall be conclusive evidence that the information is exempt..

 

(3)     Information which contains factual or statistical data and does not disclose information concerning a decision, deliberation or discussion of the office of the President, the Vice President or of the Cabinet is not exempt information.

 

(4)     This section does not prevent the President, the Vice President or the Cabinet from publishing or granting access to information that is otherwise exempt.

 

(5)     For purposes of this section, a reference to Cabinet includes a reference to a committee or sub-committee of the Cabinet.

 

Commentary:

(a)      We have combined Clauses 5 and 6 of the Bill into one section.

(b)     We have been guided by the provisions of the Draft Model Law for AU Member States and also Article XIX’s Model Freedom of Information Law as well as international best practice that disapproves of blanket exemptions, which are not subject to any harm test as contravening the right to information.

(c)      We have also replaced the phrase ‘Head of National Security’ with National Security Coordinator, as no such office as the ‘Head of National Security’ exists under the Security and Intelligence Agencies Act, 1996 (Act 526).  The office that is established under that Act is the National Security Coordinator.

 

F.     Information relating to law enforcement, public safety and the protection of property

 

Commentary: Refer to current Section 7 in the Bill. We have removed national security from the sub-heading as that is dealt with by combining section 7(3) with section 9 as a separate section.

 

(1)     Information is exempt from disclosure if it contains matters which if disclosed would or can reasonably be expected to:

 

(a)    materiallyprejudice the prevention, detection or curtailment of a contravention or possible contravention of a law;

(b)   materially prejudice the investigation of a contravention or possible contravention of a law;

(c)    materiallyprejudice the plan or manner of use of investigation techniques and procedures in law enforcement;

 

Commentary: We have introduced the adverb ‘materially’ and replaced ‘interfere’, which is overly broad with ’prejudice’, which is more concrete.

 

(d)   to disclose the identity of a confidential source of information, matter or the information given by a confidential source in respect of law enforcement;

 

Commentary: We note that sub-clauses (b), (c) and (d) in fact entail no more than an elaboration of sub-clause (a) and are in that sense repetitive. They simply add to the undesirable impression of a long list of exemptions. They may therefore be deleted as superfluous.

 

(e)    materiallyprejudice the prosecution of an offender;

 

Commentary: We have substituted ‘offender for ‘offence’, we believe this is a drafting error.

 

(f)    endanger the life or physical safety of a person;

(g)   prejudice the fair trial of a person or the impartial adjudication of a case;

(h)   materially interfere with the maintenance or enforcement of a lawful method or procedure for protecting the safety of the public;

(i)     endanger the security of a building, structure or means of transport or system, including computer and communications systems for which  security is reasonably required;

(j)     prejudice the security of a prison or place for lawful detention;

(k)   prejudice a system or procedure for witness protection or any other procedure for the protection of persons or property where the protection is required

 

(2) Information shall not be withheld: 

 

Refer to Section 7 (2) of the current Bill:

We propose here substituting for the passive words ‘Information is not exempt from disclosure’ the active words ‘Information shall not be withheld’. We do not propose any changes to the rest of the section 7 (2).

 

G.    Information that affects the security of the State and the defence of the country

 

Commentary: Section 7(3) should be combined with section 9 as they both deal with matters of security and defence of the country as follows:

“Information that affects the security of the State and the defence of the country”

 

(3)     Information created by or in the custody of the Armed Forces or the security and intelligence agencies established under the Security and Intelligence Agencies Act, 1996 (Act 526) which relate to the security of the State is exempt information if disclosure will prejudice the security of the state.

 

Commentary: This replaces the current section 7(3) which provides for blanket exemption of every piece of information, without distinction, in the custody or created by these bodies even where their disclosure may not cause any harm by subjecting the exemption to a legitimate harm test.

 

(4)     Information is exempt if its disclosure can reasonably be expected

(a)    to damage or prejudice the defence of the State or a foreign state allied to or friendly with the State; or

(b)   to be prejudicial to the detection, prevention or suppression of terrorism, sabotage or espionage.

 

Commentary: We think the sub-clause (b) is not necessary as it is simply an elaboration of section 7(1) (a)

 

H.    Economic and any other interests

 

Commentary: Refer to Section 10 in the current Bill. We suggest that the provisions of section 10 be maintained except section 10 (c), which is couched in extremely broad and vague terms and can be used by public officials to deny otherwise legitimate requests for information. 

 

We accordingly propose that either section 10(c) be deleted altogether or be reformulated thus:

 

(c)  if the disclosure can reasonably be expected to cause serious disruption of business and trade in the country.

 

Section 10 (f) be expanded as follows:

 

(f)  it contains questions to be used in academic or professional examination or recruitment or selection process if the release is likely to jeopardize the integrity of that examination or recruitment or selection process. [Addition highlighted]

 

I.       Economic interests of third parties.

 

Commentary: Refer to section 11 in the current Bill. We only propose that changes be made to section 11(1) of the current Bill. The terms ‘expressly or impliedly’ should be deleted from the section 11(1) so that the section reads thus:

 

(1)     Information which would reveal a trade secret, research, scientific, technical, commercial, financial or labour related information of a private body or which is supplied in confidence is exempt information if the disclosure can reasonably be expected:

(a)   retain current section 11(1) (a);

(b)   retain current section 11(1) (b);

(c)    to result in similar information not being supplied to the public or private body, where it is in the public interest or the legitimate interest of the private body that such information continues to be supplied. 

 

Commentary: We propose that this should replace the original sub-clause (c)] to deal with both public bodies/agencies or private bodies/agencies and also correct infelicitous language.

 

J.      Information relating to tax

 

Commentary: Retain current text.

 

 

K.    Internal working information of agencies

 

Commentary: Refer to Section 13 in the current Bill.

 

(1)     Information is exempt information which if disclosed would or would be likely to:

 

(a)    cause material prejudice to the effective formulation or development of policy by a public or private body/agency;

(b)   seriously frustrate the success of a policy, by premature disclosure of that policy;

(c)    significantly undermine the deliberative process in a public or private body/agency by inhibiting the free and frank provision of advice or exchange of views in the cause of or for the purpose of making a decision in a public or private body/agency;

(d)   significantly undermine the effectiveness of a testing or auditing procedure used by a public or private body/agency.

 

Commentary: The above section has been reformulated to take account of both public and private bodies/agencies.

 

(2)     Information is not exempt under sub- section (1):

 

(a)    if it merely contains material that has been publicly mentioned as forming the basis of a policy or formulating public policy;

(b)   if it contains only factual, technical and statistical data.

 

Commentary: Sections 14, 15 and 16 of the current Bill should be put under one section. The new section should read as follows:

 

(1)     Information is exempt information

 

(a)    if the information is privileged from production in legal proceedings under the Evidence Act 1975 (NRCD) as may be amended from time to time unless the person entitled to the privilege has waived it;

(b)   if its disclosure can reasonably be expected to constitute contempt of court or a quasi-judicial body.[Addition highlighted]

 

L.     Disclosure of personal matters

 

Commentary: Refer to section 17 in the current Bill. Retain the text of section 17 (1).

 

Amend the text of section 17 (2) thus:

 

(2)     Disclosure is unreasonable if it reveals or is likely to reveal information about the individual’s:

 

(a)    physical or mental health;

(b)   confidentialmarriage or employment record;

(c)    confidentialprofessional, commercial or financial affairs.

 

Commentary: Section 17 (2)(c) in the current Bill should be deleted since it is already catered for and protected under section 11.

 

Retain the whole of section 17 (3) and add the following as 17(3) (k)

(k)   it is about an individual’s physical or mental health or well being who is under the care of the applicant and who is:

 

(i)       under the age of 18 years; or

(ii)     incapable of understanding the nature of the request

and giving access would be in the individual’s best interest.

 

We propose that the sections on exemptions in their entirety be removed from where they currently are and are inserted after the current section 29, which deals with Manner of Access.  This will ensure that the Act, as a Right to Information Act, sets out the procedure and the grounds for access to information in the initial sections, and only after this should the exemptions follow.  We believe that this will enhance the impact of the Act as an access to information Act on anyone who reads it and make it user friendly.  Currently, the first impression one gets upon reading the Bill is that it is more about exemptions than access.  The South African, Indian, AU Model and Article XIX Model and Liberia and Mexican laws all follow this format.  And we respectfully urge the same on Honourable members

 

M.   Public interest override

 

Commentary: Section 18 has been removed and placed at the beginning of the provisions dealing with exemptions.  It has also been expanded to include a general public interest override.

 

 

ACCESS TO INFORMATION FROM PUBLIC AND PRIVATE BODIES

 

A.    Public body/agency (Definition)

A public body/agency for the purposes of this Act includes:

 

(a)    any body established under the Constitution;

(b)   a Ministry, governmental department, District Assembly, or a local authority; or

(c)    a statutory or any other body corporate or unincorporated or a public office, funded in whole or part from public funds or in which the Government has an interest or shares.

 

B.     Private body/agency (Definition)

A private body/agency for the purposes of this Act is a juristic person, which is not a public body as defined in this Act and which is wholly owned, controlled and financed by individuals or corporate bodies, not being public bodies and which:

 

(a)    carries out public function or statutory functions or provides public  services; or

(b)   exploits the natural resources of the country.

 

Commentary: We are proposing generally that instead of the term ‘government agency’ we substitute wherever the term appears the phrase   ‘public body/agency’.  This is because ‘government agency’ has, in our view, a rather limited reach as compared to ‘public body/agency’ which is intuitively broad enough in its everyday meaning to encompass the reach of public bodies.   Similarly the phrase ‘private body’ appears to be a simpler and more general term than private agency.  Finally, most right to information legislation use the phrase ‘public or private bodies’.   There appears in our respectful view, no compelling reason why the Ghana legislation should depart from this healthy tradition of right to information legislation. These definitions should be under the definition section in section 65 of the current Bill.

 

C.    Right of access to information in custody of private bodies/agencies

 

(1)     Every person shall have the right of access to information in the custody of a private body/agency, if:

 

(a)    the information sought is necessary for the protection of any right, including the right to the protection of the fundamental rights of the applicant or the right to the protection of any statutory and common law right; or

(b)   the information is necessary for the protection of broad social or public interests, such as public safety, public health, the environment or public funds.

 

(2)     A person shall disclose the right or public interest he or she seeks to protect where he or she applies for information from a private body/agency.

 

(3)     The exercise of the right in subsection ….is subject to the exemptions specified in sections…. to….

 

(4)     Where a private body/agency receives an application for access, part of which is exempt, the information officer or the head of the private agency as the case may be, shall disclose to the applicant as much of the information as can reasonably be separated without disclosing the exempt part.

 

The entire section above should come immediately after section 1 in the current Bill.

 

D.    Designation of information and deputy information officers

 

(1)     Every public or private body/agencymust designate an information officer and a deputy, where necessary, to enable the body/agency comply with the requirements of this Act.

 

(2)     If a private agency fails to designate an information officer, the head of the body will be the information officerfor the purposes of this Act.

 

(3)     A person appointed as an information officermust be competent to exercise the powers and perform the duties and functions of an information officer under this Act.

 

(4)     The information officerhas the powers, duties and functions that are conferred or imposed on the information officerby this Act.

 

(5)     A deputy information officermay exercise all the powers, duties and functions of an information officer.

 

(6)     Each person designated as a deputy information officerof a public or private agency shall be subject to the supervision of the information officerof that public or private agency in the performance of the powers, duties and functions under this Act.

 

This section on designation of information officers should follow immediately after preceding section on right of access to information.

 

E.     Compilation and publication of the manual of a private body/agency

 

Responsibility of head of private body in respect of access

(1)     The head of a private body/agency shall, within twelve months from the date of the coming into force of this Act, compile and publish in accordance with guidelines issued by the Information Commission an up-to-date manual containing:

 

(a)    the postal and street address, phone and fax number and, if available, electronic mail address of the and website of the private body/agency

(b)   a description of the guide referred to in this section, if available, and how to obtain access to it;

(c)    the latest information regarding the categories of information of the body/agency which are available without a person having to request access in terms of this Act and those available on request;

(d)   a description of the information of the agency which is available in accordance with any other legislation;

(e)    sufficient detail to facilitate an application for access to information of the body;

(f)    description of the subjects on which the body holds records and the categories of records held on each subject; and

(g)   such other information as may be prescribed by the Commission.

   

(2)     The head of a private body/agency must on a regular basis update the manual referred to in subsection (1).

 

(3)     Each manual must be made available as prescribed under the guidelines of the Commission.

 

(4)     For security, administrative or financial reasons, the Information Commission may, on request or of its own accord, by notice in the Gazette, exempt any private agency or category of private agencies from any provision of this section for such period as the Commission thinks fit.

 

The above section on ‘responsibility of the head of the private body/agency’ should follow section 3 in the current Bill.

 

Provision of guidelines for the manual

The Information Commission shall, in consultation with the Minister of Justice/Attorney General, provide guidelines for the preparation of the manual under section …..(Immediately above).

 

This section on ‘provision of guidelines for the manual’ should follow the section on ‘responsibility of the head of the private body/agency.

 

F.     Procedure for access to information of private bodies/agencies

 

(1)     An application for access to information held by a private body/agency shall:

 

(a)    be made in writing to the body/agency;

(b)   contain sufficient description or particulars to enable the information to be identified;

(c)    indicate the form and manner in which access is to be granted;

(d)   state the capacity of the applicant to the satisfaction of the officer to whom the application is made, if the application is made on behalf of another person;

(e)    state the address in the country (postal, street, fax  or e-mail) to which a communication or notice can be sent;

(f)    state the individual right or public interest sought to be protected by the information requested for   and provide an explanation of how the information is likely to protect the right or interest; and

(g)   include a statement that the application is for the protection of the life or liberty of a person and the basis for it, where the applicant is of the belief that the information is necessary to safeguard the life or liberty of a person.

 

(2)     Where an applicant is unable to make the application in writing due to illiteracy or a disability, the applicant shall make the request orally.

 

(3)     Where a request is made orally under subsection (2), the request shall be reduced into writing by the officer to whom the application is made who shall keep a copy of the written request as recorded and as duly authenticated by the applicant.

 

(4)     Where an application does not sufficiently describe the information required, the private body/agency to which the application is made shall so inform the applicant and offer the applicant the necessary assistance to identify the information.

 

Decision on application

 

(1)   Where an application for access is received by a private body/agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

(2)   The notice shall state:

(a)    whether or not access to the information will be given;

(b)   whether access to only a part of the information can be given and the reason for giving only a part ;

(c)    whether or not there has been a transfer to a subsidiary or holding company;

(d)   whether or not there is a deferred access under section ….

 

(3)   Where the information officer decides to give access, the notice shall state:

 

(a)     the period which shall not be more than fourteen days, within which the access can/will be given;

(b)    the form and manner in which access will be given;

(c)     whether access is to only part of the information because the other part is exempt

(d)    the day on which the body/agency expects he information to be published or submitted in the case of a deferred access under section …;

(e)     the fees to be paid by the applicant, if any

 

(4)   Where the body/agency decides to refuse access, the notice shall state:

 

(a)     the reason for the refusal;

(b)   the right of the applicant to seek redress by appealing to the Information Commission under section …… of this Act.

(c)    the name and rank of the officer who dealt with the application.

 

Extension of time to deal with application

 

The same as section 26 (1) in the current Bill, except that, we propose the deletion of the Minister’s discretion on application to extend the period for a further three months. [Please see our proposals on timelines below]

 

We propose a new section after section 26 thus:

 

Notwithstanding sections 23 (1) and (3) (a) and 26 (in the current Bill), where an application relates to informationwhich reasonably appears to be necessary to safeguard the life or liberty of a person, the information officermust within forty-eight hours or some such shorter period,

 

(a)    determine whether to grant the application;

(b) notify the applicant of the decision in writing; and

(c) if the application is granted, give the applicantaccess to the information.

 

Notwithstanding subsections (1), (3)(a) and the section on extension of time(above), where information requested contains third party information, an applicant may not be granted access to that informationuntil such time as any right of the third partyto appeal the release of the information has expired or any appeal lodged by the third party has been finally determined.

[Drawn from the AU Draft Model Law]

 

 

 

 

48 hour request refused

 

If upon reviewing an application, it does not appear to the information officer that the information requested reasonably appears to be necessary to safeguard the life or liberty of a person, the information officer shall within forty-eight hours of receipt of the application:

 

(a)    give notice of his decision, including adequate reasons for the decision, to the applicant;

(b)   inform the applicantthat, subject to the applicant‘s right to apply to the Information Commission for a review, the information officerwill make a decision regarding whether  to grant access to the requested informationwithin the time period specified in the combined effect of subsection (1) and (4), that is fourteen working days and a further fourteen days.

 

Information that cannot be found or not in existence

 

Retain section 24 of the current Bill.

 

Deemed refusal

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…,within the extended period of time, the information officer shall be deemed to have refused the application.

 

G.    Internal reviews and appeals from a decision of a public body/agency

 

Refer to section 38 in the current Bill.

 

(1)     Except a otherwise provided in this Act, a person aggrieved by a decision of the information officer of a public body/agency may submit an application for review of the decision to a senior officer specifically designated for that purpose by the Minister responsible for the body/agency to be known as the Internal Information Review Officer.

 

Commentary: Instead of vesting the Minister with the duty to review, the responsible Minister rather designates a senior official in the Ministry for this function.  This is because invariably, the minister would be too busy with other core functions of the Ministry to have time for internal reviews under the Act.

      

(2)     An application for review shall be:

 

(a)    in writing and addressed to the Internal Information Review Officer; and

 

Commentary: Subsection 2 (a) and (c) of section 38 in the current Bill have been combined.  We also propose that subsection (b) on payment of appeal fees be deleted as this could serve as a powerful disincentive and stifle the interest of citizens and other persons to challenge negative decision on their applications.

 

(b)   submitted within twenty-one working days after receipt of the notification of the decision sought to be reviewed, provided however that the Internal Information Review Officer may where it is just and fair extend the time within which to file an application for review.

 

(c)    Where the applicant is unable for whatever reason to write the review application, the information officer shall assist him in writing the application for review.

 

Action by the Internal Information Review Officer

 

Commentary: Refer to section 39 in the current Bill. Consistent with our proposal for replacing the Minister with the Internal Information Review Officer, we propose that every where there is a reference to the Minister in the part dealing with internal review, we substitute Internal Information Review Officer.

 

Beyond this, only a reformulation of subsection (3) of section 39 in the current Bill thus:

 

(3)     The Internal Information Review Officer shall conduct the review in camera only where the demands of confidentiality require that the review be so heard.

 

Commentary: This new formulation is in our view consistent with the fundamental principle of openness and transparency which underpins any genuine right to information legal regime.  Holding review proceedings in camera as a matter of course only reinforces the culture of secrecy that the RTI law seeks to transform.  This is especially the case as subsection (4) provides against disclosing any information which is exempt during review proceedings.  However, provision is made to cater for situations where there is a legitimate need for proceeding of the internal review be held in camera.

 

Decision of Internal Information Review Officer

 

Refer to section 40 in the current Bill.

 

(1)     The Internal Information Review officer shall notify the applicant of his decision on the application within twenty-one working days of receipt of the application for a review.

 

Commentary: The phrase ‘if there is no delay or other default on the applicant’, in the current text of the Bill, has been deleted so that the law can be seen as a way of encouraging review and dealing with the applications on their merit.

 

(2)     The notice shall state:

 

(a)    the reason for the decision and the provision of the Act relied on; and

(b)   where the review is dismissed that the applicant may file an appeal to the  Commission established under section …. of this Act.

 

Commentary: We propose here the Independent information Commission instead of an Appeals Commission.  We are also of the considered view that provision of section 40 (2) of the current Bill which provides that where the review is dismissed, the applicant’s recourse is to file a application for judicial review in the Supreme Court is seriously restrictive and will tend in practice to stultify the right of judicial review in our courts.  This is so because in every situation that the review application is dismissed because the information requested for is adjudged exempt information, it would be because of national security or other public interest considerations.  This will mean that in every situation where a review is unsuccessful, the applicant’s only recourse is to the Supreme Court.  Most Ghanaians would not have the money, determination, nor resources to apply for judicial review to the Supreme Court.  The result is that many Ghanaians would be denied the opportunity to assert their right to information.  What is more, Article 135 (1) and (2) of the Constitution that this section purports to rely upon does not require that appeals against the decision of the internal review process should be lodged in the Supreme Court.  Were this to be the case, there would be no need for internal review in the first place, as any dispute over exempt information,  would, by this interpretation of Article 135 (1) and (2), be referred to the Supreme Court for judicial review. Fortunately, this reading of Article 135 is with respect not correct.  Article 135 (1) and (2) deals with situations where disputes arise in court as to whether an official document should be produced in court because its production or disclosure of its contents will be prejudicial to the security of the State or injurious to the public interest.  Article 135 does not deal with where the dispute arises outside the context of court proceedings.   Thus, it would be constitutional where such a dispute arises at the internal review stage for the aggrieved applicant to appeal to the Information Commission for review.  It is only where the applicant or the public or private agency, as the case maybe, is aggrieved by the decision of the Information Commission that an application for judicial review should lie to the Supreme Court.  This way, the applicant who is aggrieved with the decision of the internal review process will, in the first instance, be afforded a ready, simple, not-costly or legalistic and independent forum to ventilate his grievance against a dismissal of his review application.

 

(3)     An applicant aggrieved with the decision of the Internal Information Review Officer may appeal to the Information Commission established under section … of this Act within sixty days of receipt of the decision.

 

H.    Appeals from the decision of an information officer of a private body/agency

 

An aggrieved applicant shall apply to the Information Commission established under section … of this Act against any decision of an information officer of a private body/agency within sixty days of receipt of the decision of the information officer.

 

Commentary: In the case of private bodies/agencies, we propose that there should be no internal review.

 

FEES

 

Commentary: We propose that the provisions on fees regime should be in one part, instead of being scattered in different parts of the Bill and in some instances appearing to be inconsistent with each other.  Some provisions suggest that it is the body/agency that determines the fees to be charged, while other provisions appear to vest in the Attorney-General the power of establishing a scale of fees for all public bodies/agencies. By bringing together provisions on fees under one part, the fees regime would become clearer to the ordinary person, the inconsistencies and tensions in the provisions will become apparent and be readily corrected.

 

Furthermore, in line with international best practice and human right norms, it is proposed that the fees should be limited to the actual cost of reproduction of the information requested for.  Costs should not be an impediment to the enjoyment of an essential fundamental human right such as the right to information and should not be permitted to deter applicants. This also means that the amount of time it takes an agency to search for, and retrieve information requested shall not be at the cost of the innocent applicant, who can hardly be held responsible for the poor system of record keeping, maintenance and retrieval of the body/agency concerned.

 

Finally, the requirements of advance deposits and application fees; and also the provision that where the application is rejected the applicant shall pay for the cost of dealing with application, should all be deleted.

 

The complex contradictory fees structure in the current Bill can be found in the following sections:

 

Section 19(1) (f) – an application shall be accompanied with the relevant fee.  What ‘the relevant fee is remains a mystery.

           

Section 23 (3) (e) – where the information officer decides to give access, the notice shall state the fee to be paid by the applicant.

 

Section 23 (4) (d) - Where the agency decides to refuse access, the notice shall state the fees payable for dealing with the application.

 

Part of section 23 (6) refusal on grounds of failure to pay deposit fee

 

Section 25 (1) – Where the costs of the agency for dealing with an application  are likely to exceed the amount of the application fee the agency may request  the applicant to pay a reasonable deposit determined by the agency.

 

25 (5) - An agency may refuse to give access to information if a fee or advance deposit payable is not paid within the period notified to the applicant.

 

Section 27 (1) – An agency may refuse to continue to process an application where the agency has by notice demanded payment of an advance deposit in relation to the application and the4 applicant has not paid the deposit within the period specified in the notice.

 

Section 50 (1) - An applicant seeking an access to information under this Act shall pay the fee or charge determined b the minister for justice;

 

Section 50 (2) - The Minister for justice shall specify by legislative instrument issue relevant guidelines to the agencies.

 

            Section 50 (3) – the guidelines shall specify the amount payable for

                       

(a)   A search for every hour or fraction of an horn of a manual search required in excess of two hours to locate the information;

(b)   The computer access and other costs incurred in locating, retrieving, processing and photocopying the information;

(c)    The cost of preparing the information for disclosure; and

(d)    postage cost

 

In pace of these different sections on fees we propose the following:

 

A.    Fees chargeable by public or private body/ agency

 

(1)     An applicant under this Act in respect of information held by a public  or private body/agency shall not be required to pay any fee:

 

(a)    on lodging an application for information;

(b)   in relation to time spent by a public or private body/agency  in searching for the information requested;

(c)    in relation to time spent by the public or private body/agencyin examining the informationto determine whether it contains exempt informationor deleting exempt informationfrom a document; or

(d)   in relation to time spent or costs incurred by the public or private body/ agencyin transcribing the information.

 

(2)     Subject to subsection (3), the public or private body/agencymay charge the applicant a reproduction feeconsisting of the reasonable reproduction costs incurred by the public body/agency and for sending the information to the applicant.

 

(3)     No reproduction feeshall be payable:

 

(a)    for reproduction of personal information of the applicant, or where the application is made on behalf of another person, the personal information of the person on whose behalf the applicationis made;

(b)   where the public agency/ bodyhas failed to comply with the time for responding to an applicationunder section … or where an extension of time has been made under section … within that extended period of time; or

(c)    where the applicant is an indigent.

[Drawn largely from the AU draft Model law as well as portions of the Mexican law and Indian RTI Act]

 

B.     Fees not part of the Consolidated Funds

 

(1)     The fees and charges received by a public body/agency under this Act shall, in accordance with Article 176 (2) (b) be retained by the body/agency in a specified account to be used to defray the expenses incurred by the body/agency in the performance of its functions under this Act and shall not form part of the Consolidated Fund.

 

(2)     The Minister for Justice shall, in consultation with the Information Commission, by legislative instrument, establish the accounting procedures for the management of these fees.

 

ESTABLISHMENT OF AN INDEPENDENT INFORMATION COMMISSION

 

A.    Establishment of an Information Commission

 

(1)     There is hereby established an I Information Commission, referred to in this Act as “the Commission”.

 

(2)     The Commission shall be a body corporate with perpetual succession and a common seal and may sue and be sue in its corporate name.

 

(3)     The Commission may for and in connection with the discharge of its functions purchase, hold, manage, or dispose of any movable or immovable property and may enter into such contracts and transaction as may be reasonably related to its functions.

 

B.     Functions of the Commission

 

The Commission shall:

 

(1)     be responsible for the promotion and effective implementation of the right to access of information under this Act and may for this purpose issue written guidelines and directives to all public and private bodies/agencies subject to the provisions of this Act;

(2)     monitor and report on compliance by all bodies/agencies subject to the provisions of this Act;

(3)     make recommendations for reform both of a general nature and directed at specific agencies;

(4)     carry out nation-wide public education and popularization of the provisions of this Act by disseminating or publicizing the requirements of this Act and the rights of the individual under it;  and to that end collaborate with the National Commission for Civic Education, the Commission for Human Rights and Administrative Justice and identifiable civil society stakeholders/organizations;

(5)     receive, inquire into and determine appeals/complaints from aggrieved applicants against the decision or other act of commission or omission of any body/agency subject to this Act;

(6)     conduct audit compliance with the provisions of the Act by private and public bodies/agencies;.

(7)     carry out investigations on its own initiative or upon receipt of an appeal or complaint from the public, into any matter  related to the enforcement of the provisions of this Act;

(cool.gif     submit before Parliament not later than the 30th June of each year an annual report of its activities and compliance by all agencies subject to this Act;

(9)     from time to time lay before Parliament such other reports as it deems appropriate and Parliament may debate the report and pass the resolution that it considers fit.;

(10)train information officers and such other relevant officers on their obligations and powers under this Act;

(11)refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences committed under this Act for investigation and prosecution;

(12)initiate research to be conducted into matters affecting the purposes of this Act;

(13)take such other appropriate measures as the Commission considers necessary to give effect to the provisions of this Act.

 

C.    Independence and autonomy of the Commission

 

(1)     Except as otherwise provided by the Constitution or by this Act, the Commission shall not be subject to the direction or control or any person or authority in the performance of its functions.

 

(2)     The Commission shall develop its own rules and procedures to regulate its affairs through a process of public consultation.

 

D.    Composition of the Commission

 

(1)     The Commission shall consist of five (5) or seven (7) members, one of whom shall be the chairperson who shall be appointed in the following manner:

 

(a)    The President shall issue a public call for nominations.

(b)   The nominations and interview process shall be transparent and include public participation.

(c)    The selection and appointment shall be completed within … months of the call for nominations.

(d)   The President shall appoint the Information Commissioners, including the chairman thereof upon the recommendation of a committee made up of:

 

(i)       One representative each from the majority and minority in Parliament;

(ii)     One representative from the Ghana Bar Association;

(iii)   One representative from Organised Labour;

(iv)    One representative from the Association on of Industries of Ghana and the Ghana Chamber of Commerce

(v)     One representative from the Ghana Journalists Association;

(vi)   One representative from the Network of Women’s Rights;

(vii)One Representative from the Christian Group (the National Catholic Secretariat, the Christian Council and the Pentecostal Council);

(viii)              One representative from the Federation of Muslim Councils and the Ahmadiyya Missions.

 

E.     Qualification of members of the Commission

 

(1)     The Information Commissioners shall:

(a)    be citizens of Ghana;

(b)   be fit and proper persons appropriately qualified for appointment;

(c)    be recognized human rights advocates;

(d)   be independent, impartial and accountable; and

(e)    have demonstrable knowledge in law, access to information, transparency, record-keeping and classification, and public and corporate governance.

 

(2)     A person shall not be qualified to be appointed an Information Commissioner if he/she:

 

(a)    has within the past five years held an office or is an employee of a political party or holds a political appointment in government or is a Member of Parliament;

(b)   has been convicted for high crime under the Constitution or high treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or for any offence punishable by death or by a sentence not less than ten years;

(c)    has been adjudged or otherwise declared bankrupt or insolvent under the laws of Ghana and has not been discharged;

(d)   is of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or

(e)    has a record of wrongful and deliberate destruction or falsification of official information.

 

F.     Tenure of office of members

 

(1)     An Information Commissioner shall hold full-time office on the Commission for a term of five years, subject to reappointment for one further term of four/five years.

 

(2)     An Information Commissioner must not be appointed for any further term after the expiry of the term of reappointment in subsection (1).

 

(3)     The President may appoint an Interim Information Commissioner for a period not exceeding six months in consultation with the Majority and Minority leaders of Parliament if:

 

(a)    any Information Commissioner is incapacitated, removed from office or resigns; or

(b)   in the period immediately after the tenure of an Information Commissioner has ended.

 

(4)     The President shall, subject to the approval of a two-third majority of Parliament, have the power to terminate the appointment of an Information Commissioner where:

 

(a)    the person is mentally or physically incapable of performing the functions and duties of the role;

(b)   the person is insolvent; or

(c)    stated misconduct has been established.

(d)   stated misconduct has been established.

 

(5)     During their term of office, an Information Commissioner and Interim Information Commissioner must not occupy or engage in any other activity, profession or trade outside their office for financial gain.

 

G.    Remuneration

 

(1)     The Chairperson shall receive a salary equivalent to that of a Justice of the Court of Appeal/Supreme Court.

 

(2)     The other Information Commissioners shall receive a salary equivalent to that of a Justice of the High Court/Court of Appeal.

 

(3)     The Chairperson and Information Commissioners shall receive reasonable travelling and living expenses incurred in the course of the conduct of their duties.

 

(4)     The Chairperson and Information Commissioners shall respectively be entitled to the equivalent pension benefits as that of the Justice of the Court of Appeal/Supreme Court and High Court/Court of Appeal respectively, provided that where any Commissioner already enjoys public pension the pension he or she already enjoys shall be deducted from his or her pension as a Commissioner.

 

(5)   Any other issues relating to the payment of salaries, expenses, pensions or compensation shall be guided by legislation relevant to these issues applicable within the public service and the judiciary of the Republic.

 

H.    Appeals or complaints to the Commission

 

(1)     A person who has made a request for information may apply to the Commission  for a decision that a public or private body/agency subject to this Act has failed to comply with any obligation placed on it in respect of applications for disclosure of information , including:

 

(a)    refusing to indicate whether or not it holds a record or to communicate information;

(b)   failing to respond to an application for information within the time  limits established under this Act;

(c)    failing to provide notice in writing of its response to a request for information in accordance with this Act;

(d)   charging an excessive fee;

(e)    failing to communicate information in the form requested for without any

justifiable reason.

 

(2)     An appeal shall lie to the Commission

 

(a)    in the case of the office of the President, the Vice President and the Cabinet, after the Secretary to any of these institutions dismisses an application by the issue of a signed certificate in accordance with section…..

(b)   in the case of any other public agency, where the Internal Review Information Officer dismisses an application for internal review;

(c)    in the case of a private agency, where the agency refuses to grant application for disclosure of information.

 

(3)     An appeal to the Commission shall be lodged at the Commissionsixty days after the decision appealed. 

 

Decision on Appeal or Complaint

 

(1)     The Commissioner shall, subject to sub-section (2), decide an application made under section… as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body/agency an opportunity to provide their views in writing.

 

(2)     The Commissioner may summarily reject applications: –

(a)    which are frivolous, vexatious or clearly unwarranted; or

(b)   where the applicant has failed to use any effective and timely internal appeals mechanisms provided by the relevant public or private body.

 

(3)     In any application under this section, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under this Act.

 

(4)     In enquiring into any complaint or appeal before it, the Commission shall have  power similar to the High Court in respect of the following matters;

 

(a)    summoning and enforcing the attendance of persons and compelling them to give oral or written evidence on oath or affirmation to produce the relevant documents or things;

(b)   requiring discovery and inspection of documents or things;

(c)    receiving evidence on affidavit;

(d)   requisitioning any public record or copies thereof from any office;

(e)    any other matter which may be prescribed.

 

(5)     The Commission may, during investigation pursuant to sub-section (4), examine any record to which this Act applies, and no such record shall be withheld from the Commission on any grounds. 

 

(6)     Where necessary as a result of the confidentiality of the record in issue, the Commission may sit in camera.

 

(7)     In its decision pursuant to sub-section (1), the Commissioner may: –

 

(a)    reject the application;

(b)   require the public or private body/agency to take such steps as may be necessary to bring it into compliance with its obligations under this Act;

(c)    require the public or private body/agency to compensate the complainant for any loss or other detriment suffered; and/or

(d)   in cases of egregious or willful failure to comply with an obligation under this Act, impose a fine on the public or private body/agency not exceeding ….penalty points.

 

(cool.gif     The Commission shall serve notice of its decision, including any rights of appeal, on both the complainant and the public or private body/agency.

 

Appeal from the Commission Decisions and Orders

 

(1)     The complainant or the relevant public or private body/agency may, within 45 days, appeal to the Supreme Court for a full review of a decision of the Commission pursuant to sections … or…, or an order pursuant to section….

(2)     In any appeal from a decision pursuant to section .., the burden of proof shall be on the public or private body/agency to show that it acted in accordance with its obligations under section …….

 

Binding Nature of Commissioner’s Decisions and Orders

Upon expiry of the 45-day period for appeals to the Supreme Court pursuant to section …, the Commission shall certify in writing to the court any failure to comply with a decision pursuant to section …… or an order pursuant to section  and the court shall consider such failure under the rules relating to contempt of court

 

I.       Other Staff of the Commission

The Commission shall appoint such other officers and employees as are reasonably necessary for the effective performance of its functions, including, persons with the requisite qualifications in record creation, maintenance and retrieval, in law, investigations and having knowledge and expertise in implementation of the provisions of this Act.

 

J.      Funds of the Commission

The administrative expenses of the Information Commission, including the salaries, allowances and pensions payable to or in respect of persons serving with the Commission shall be charged on the Consolidated Fund andParliament shall appropriate the budget presented by the Commission annually upon its presentation.

 

K.    Protection of the Commission

 

(1)     No criminal or civil proceedings shall lie against the Commission or against any person acting on behalf of or under the direction of the Commission, for anything done, reported or said in good faith in the course of the exercise of any power or duty under this Act.

 

(2)     For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice or in bad faith.

[Drawn from Article 19 Model Law]

 

(3)     Personnel who disclose wrongdoing within the Commission shall not be subject to any detriment in the course of their employment by reason of the disclosure.

[Drawn from the AU Model Law]

 

L.     Code of conduct

 

(1)     The Commission shall develop its own code of conduct after consultation with the Minister for Justice and the general public.

(2)     The Commission may after consultation with the Minister of Justice and the public, review such code of conduct from time to time.

(3)     Any code of conduct issued by the Commission or amended after review by the Commission shall be made public within 30 days of its confirmation.

[Drawn from the AU Model and the Mexico FOI law]

 

M.   Engagement of experts

 

(1)     The Commission may, whenever it deems appropriate, convene a panel of specialist experts or obtain the cooperation of any body for the purposes of decision making, issuing recommendations or other work undertaken under this Act.

(2)     The terms of engagement of such temporary services are to be determined by the Commission.

(3)     Any panel of experts convened must include representation from appropriate civil society organizations.

 

N.    Regulation of procedure

(1)     Subject to this Act, the Commission, in consultation with the Minister for Justice shall determine the procedure to be followed in the exercise of any power, the performance of any duty or function of the Commission under this Act.

(2)     The Commission may, from time to time, after public consultation, review the procedure referred to in subsection (1).

 

LIMITATION OF PERIOD OF EXEMPT INFORMATION

 

Commentary: Refer to Section 57 in the current Bill. Subsection (1) should be retained while sub-section (2) should be amended. The section should read as follows:

 

(1)     Information classified as exempt information under sections … to … in respect of public bodies/agencies ceases to be exempt information on the expiry of twenty-five years calculated from the end of the calendar year in which the information into came existence.

 

(2)     On the expiry of the period specified in subsection (1), a person may seek access to the information and the public body/agency which has custody of the information shall give access in accordance with the procedure established under this Act, provided however that where disclosure of the information will endanger the life or physical safety of an individual, the information shall not be disclosed. 

 

CHIEFTAINCY INSTITUTION

 

Commentary: The Chieftaincy institution is a political institution, and thus a public body and not a private body.  Furthermore, Article 36(cool.gif of the Constitution expressly provides stools and skins are accountable as fiduciaries to their people as follows:

 

“36 (cool.gif The State shall recognize the managers of public stool and family lands as fiduciaries charged with the obligation to discharge functions for the benefit of the people of Ghana, of the stool, skin or family concerned and are accountable as fiduciaries”.

 

Accordingly, we propose that stools and skins should be accountable for the income they receive from the management and or use of stool lands and from public donations and grants to stools and skins for the development of their communities.

 

We accordingly propose the following new section:

 

(1)     Every member of a stool or skin shall have the right of access to information  from his/her stool or skin in respect of income or other resources received from the management, alienation or use of stool land  and for donations made to the stool or skin for the development of the community which the stool or skin represents.

 

(2)     The National House of Chiefs shall in consultation with the Commission established under this Act make regulations and established procedures which every stool and skin shall comply with in granting access to information to members of their community on the use of resources derived from the management and use of stool lands and monies and other resources donated to stools and skins for the development of their communities.

 

 

OTHER ISSUES THAT DEMAND THE ATTENTION OF THE SELECT JOINT COMMITTEE

 

In addition to the issues identified for the zero draft, we believe there are certain provisions of the current text which though are not the specific subject of this zero draft, ought in our respectful view, to be improved upon, or where there are omissions filled in order that the full objects of the right to information may be secured to the people and our Republic.  With respect we proceed to consider them.

 

TIMELINES FOR DISCLOSURE OF INFORMATION

 

Commentary: This issue has been a question of widespread concern among the stakeholders and was in particular a major subject of critical comment during the nation-wide consultation of the Parliamentary Select Joint Committee.  Unfortunately however, it seems to have escaped the review meeting as one of the critical issues that ought to be flagged for further consideration.   This is because the timely disclosure of information is fundamental to the efficacy of any right to information legislation.  Regrettably the time-lines for disclosure under the current Bill are unduly long and are likely to have the direct effect of undermining this right.  Currently, by virtue of the combined effect sections 23(1) and 26 (1) of the Bill, it may take 151 days, that is, over five months, for an application for information to be granted.  And yet this would be perfectly lawful!  Neighbouring Nigeria’s FOI law provides for 7 days for responding to applications with an extension of a further 7days.   Liberia, which just recently emerged from a brutal civil war provides in its Freedom of Information Act, a maximum period of 30 days for every public and private body to respond to an application provided that this period may be extended only once upon showing reasonable cause.  We are therefore, with respect, taking this opportunity flag the question of timelines for the critical consideration of the Select Committee.

 

We propose the following:

 

Section 23 (1) be amended as follows;

(1)     Where an application for access is received by an agency, the information officer shall take a decision on the application and send a written notice to the applicant within fourteen working days from the date of receipt of the application.

 

Section 23 (3) be retained.

 

Section 26 (2) be amended as follows:

(2)     The period of extension shall not exceed twenty-one days from the date when a decision on the application should have been made.

 

Commentary: In any event there is no justification for a further extension by the Minister in charge of the agency by a total of three months under section 26 (1) and that part should definitely be deleted.

 

LONG TITLE OF THE ACT

 

We propose that the long title of the Act be amended as follows:

 

“An Act to provide for the implementation of the right to information held by public  and private agencies/bodies, subject to exemptions that are necessary and consistent with the protection of the public interest and the rights of the individual in a democratic society; to foster a culture of transparency and accountability in public affairs, to contain corruption, promote popular participation in governance, to place obligation on public and private agencies/bodies to provide information proactively and in response to a formal request in a timely, inexpensive and reasonable manner and to provide for related matters”..   

 

RIGHT OF ACCESS TO INFORMATION

 

We propose the following amendment of section 1in the current Bill.

 

(1)     Every person shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society. 

 

Commentary: This is a direct reproduction of the constitutional guarantee of the right to information.  We propose that the text begins with an affirmation of the specific text of Article 21 (1) (f).

 

(2)     Subject to the Constitution and the provisions of this Act, every person shall have the right of access to information or part of the information in the custody or under the control of a public body/agency or a private body/agency subject to this Act.

 

(3)     The exercise of the right under subsection (2) is subject to the exemptions specified in sections … to ….

 

Commentary: Note that we have combined some of the exemptions into one section and so the numbering will change if our proposal is considered acceptable.

 

(4)     Nothing in this Act is intended to prevent or discourage public or private bodies/agencies from publishing or disseminating and giving access to information, (including information exempt under the provisions of this Act) where they can properly do so or are required by law to do so.  [Drawn from the Draft Model Law for AU Member States] 

 

Commentary: This is to ensure that notwithstanding the general provisions on exempt information under the RTI law, where some specific law requires disclosure or where a public agency can properly and lawfully disclose information, the provisions on exempt information do not become a barrier to disclosure.

 

DUTY ON RECORD-KEEPING BY PUBLIC AND PRIVATE BODIES/AGENCIES

 

We propose a new section which underscores the fundamental obligation of public and private bodies under this Act to create and keep records thus:

 

“Every public or private body subject to this Act shall have the obligation to create, maintain and preserve any information it generates or which comes into its custody in a manner that facilitates easy retrieval and access in accordance with guidelines of the Commission”.

 

GUIDE ON HOW TO USE THE ACT

 

We propose insertion of a new section before section 3 of the current Bill on the need for the Information Commission to publish and disseminate a guide on how to use the Act.

 

(1)     The Information Commission established under section … of this Act shall within eighteen (1cool.gif months after the commencement of this Act compile and disseminate in English, and other Ghanaian languages, and in a simple and user-friendly form, a guide as to how to use this Act.

 

(2)     The guide must, without limiting the generality of subsection (1), include a description of:

(a)    the objects of this Act;

(b)   the postal and street address, phone and fax number and, if available, the electronic mail address of:

(i)            the information officer of every public or private body/agency; and

(ii)          every deputy information officer of every public body/agency appointed under this Act; and

(iii)        the website of the public or private body/agency;

 

(c)    such particulars of every public or private body as are practicable;

(d)   the manner and form of an application  for:

(i)       access to a record of a public body contemplated in section …; and

(ii)     access to a record of a private body contemplated in section …

 

(e)    the assistance available from the information officer of a public or private body/agency in terms of this Act;

(f)    the assistance available from the Commission in terms of this Act;

(g)   all remedies in law available regarding an act or failure to act in respect of a right or duty conferred or imposed by this Act, including the manner of lodging—

(i)       an internal review; and

(ii)     an application to the Commission against an Internal Information Review Officer of a public body/agency or an information officer of a private body/agency;

 

(h)   the provisions of sections 3 (current) and …  requiring a public body/agency and private body/agency, respectively, to compile a manual, and how to obtain access to a manual;

(i)     fees to be paid in relation to requests for access; and               

(j)     the regulations made in terms of section 64 of the current Bill.

 

(3)     The Information Commission must, if necessary, update and publish the guide at intervals of not more than two years.

 

PROACTIVE DISCLOSURE

 

We propose that the current section 3 of the Bill which places on the responsible Minister the obligation to publish a manual listing the agencies under the Ministry and which specifies the list of facts and matters to be disclosed in the Manual to published by every Minister should be amended as follows:

 

(1)     The Minister responsible for a public body/agency shall, within twelve months from the date of coming into force of this Act, and every twelve months after that date, compile and publish, after consultations with the Information Commission established under this Act, the Public Services Commission and the Head of Civil Service, and in accordance with the guidelines issued by the Information Commission under section ….., an up-to-date official information compilation in the form of a manual, listing the public bodies/agencies that are under the Ministry.

 

(2)     The manual shall contain:

 

(a)    a description of the organizational structure and functions of each body/agency, including details of the responsibility of each division or branch of each public body/agency;

(b)   the names salaries and dates of employment of all employees and officers of the public body/agency;

(c)    the channels of supervision and accountability in a decision-making process;

(d)   the norms set by the public body/agency for the discharge of its functions;

(e)    the budgets allocated to each public body/agency, indicating the particulars of all plans, proposed expenditure and reports on disbursements made;

(f)    particulars of recipients of concessions, permits, grants, licences, contracts, authorization granted by the public body/agency;

(g)   a list of materials containing information relating to any grant or contract made by or between the public body/agency and another public/body agency or private body/agency;

(h)   a list of the type of information that may be purchased or inspected free of charge or subject to a fee and fee payable in respect of an access to information specified by the Commission under section …..

(i)     the name, telephone number, fax, e-mail and postal address of the information officer of the agency or designated officer or deputies thereof, where necessary, of the public body/ agency to whom a request for access maybe made;

(j)     the place in the agency where information is available under this Act or any other enactment, can be found or made available, including its website, if any;

(k)   the arrangements made and procedures established in the agency that will enable members of the public participate in the formulation of the policies of the agency;

(l)     the policies and decisions of the agency and the reasons for the policies;

(m)the arrangements made or procedures established by the agency to enable a member of the public seek amendment of the member’s official record with the agency.

[We have been guided by provisions of the Ghana Bill, the South African, Nigerian, and Liberian FOI laws, AU Draft Model law and Article 19 Model Law]

                                                        

GENERAL AND MISCELLANEOUS PROVISIONS

 

A.    Deemed refusal

 

We also propose a new section on ‘Deemed Refusal’ to be inserted before section 27 of the current Bill.

 

Deemed Refusal – General and miscellaneous provisions affecting public and private bodies/agencies under this Act

 

Where an information officer fails to give a decision on an application within the time limit specified under section … or section ….. or where the time period has been extended in accordance with section…within the extended period of time, the information officer shall be deemed to have refused the application.

 [Drawn from the AU Model law]                

 

 

B.     Duty of every public and private body/agency to publish and disseminate manual

 

Commentary: In the spirit of proactive disclosure, every public and private body/agency should have a duty to publish and disseminate its manual. We propose that a section on this duty is included under the General and Miscellaneous part of the Bill as follows:

 

Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

 

(a)    a description of its structure, functions, duties and finances;

(b)   relevant details concerning any services it provides directly to members of the public;

(c)    any direct request or complaints mechanisms available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

(d)   a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a  request for information;

(e)    a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

(f)    any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

(g)   the content of all decisions and/or policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

(h)   any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that body.

 

“publish” means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination.

[Add to the definition section]

 

 

C.    Primacy of the Act

 

We propose that section 66 in the current Bill should be designated:

 

“Primacy of Act and Modification of Existing Enactments”

 

[This is drawn from the AU Model Draft law]

 

We also propose further that instead of the text of the current clause 66, we substitute a new clause as follows;

 

(1)     This Act applies to the exclusion of any provision in any other legislation or regulation that prohibits or restricts the disclosure of informationof a public body/agency or a private body/agency.

 

(2)     Nothing in this Act shall limit or otherwise restrict any other legislative requirement, policy or established practice for a public agency or a private agencyto disclose information.

 

Commentary: This provision is common to right to information legislation.  The purpose is to ensure that where a specific law mandates the disclosure of information that might otherwise be exempt under the general provisions of this Act, the specific provision for disclosure is complied with. [Drawn from the AU Model Draft law and Article XIX Model Law]

 

Training of Officials

 

We propose to add a new provision as follows under the General and miscellaneous part.

 

“Every public and private body/agency subject to this Act shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act”. [Drawn from Article XIX Model Law]

 

 

TRANSITIONAL PROVISIONS

 

(1)     Every public or private body/agency subject to this Act shall designate information officers and deputy information officers, where necessary, train and equip them with the necessary resources and expertise within …. months after this Act comes into effect and they shall start functioning within a further ….months.

 

(2)     Every public or private body/ agency shall establish effective systems of record creation, maintenance, preservation and retrieval to facilitate the object of this Act and shall complete the organization of their archives within the first … month of the coming into effect of this Act.

 

(3)     The nomination of the first ….Commissioners shall take place not later than …. months after the law come into effect.  Two/three of the Commissioners shall end their tenure in …years and they may be re-appointed for an additional term, of …years.

 

(4)     Individuals may present applications for access to information or access to and correction of personal information one year after this Act comes into effect.                                                                                     

 

(5)     As soon as possible but in any event within eighteen months of the coming into effect of this Act, all public bodies/agencies and private bodies/agencies shall be required to prepare information manuals to be deposited with the Commission and in the designated places within the public and private bodies/agencies and also on their websites, if any, in conformity with sections … and …. of this Act..

 

(6)     The provisions of this act will become fully operational............months after the coming into effect/ passage into law of this Act.

 

(7)     For purposes of the current section 23, for a period of twelve months from the time the provisions of this Act becomes fully operational every reference to fourteen working days or fourteen days shall be construed to mean thirty days and every reference to twenty-one days shall be construed as forty-two days                         

 

(cool.gif      The Attorney General, in consultation with the Information Commission, shall, within eighteen months of the coming into effect of this Act, review all laws restricting access to information, including the State Secrets Act, 1962 (Act 101), the Civil Service Act, 1993 (PNDCL 327) and the regulations pursuant thereto

 

 

and the Oaths Act1972 (NRCD 6), to bring them into conformity with the provisions of the Constitution and this Act.

 

SCHEDULE

Form of oath or affirmation to be made by Commissioners (Section …..)

 

I, ………:………. …..having been appointed the Chairman of the Information Commission/ a member of the Information Commission do  (in the name of the Almighty God) (solemnly affirm that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitutions and the laws of the Republic of Ghana.  (So help me God).

 

To be sworn before the president, the Chief Justice or such other person as the Chief Justice may designate.

 

 

 

Akoto Ampaw

6th May 2012

Accra

 

 

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