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Memorandum on the Freedom of Information Bill
Submitted to:
The
Senate Committee on Information
By:
The
Freedom of Information Coalition
c/o Media Rights Agenda
10, Agboola Aina Street
Off
Amore Street, Ikeja, Lagos
Tel:
01-4936033 & 4936034
Fax:
01-4930831
E-mail:
foi@mediarightsagenda.org
http://www.mediarightsagenda.org
March
2005
Introduction
This
submission is prepared by the Freedom of Information
Coalition to facilitate the process of consideration of and
reporting on the Freedom of Information Bill (hereafter
referred to as “the Bill”) through the Committee stage and
third reading in the Senate.
The
Freedom of Information Coalition is an alliance of 136 civil
society organizations and thousands of individuals
campaigning for the enactment of a Freedom of Information
Act in Nigeria. The coalition undertakes a number of
advocacy activities aimed at sensitizing and lobbying
elected and appointed government officials both, at the
federal, state and local government levels to ensure the
passage of the Freedom of Information Bill by the National
Assembly, at the earliest possible time.
The
coalition also works to popularize the freedom of
information (FOI) bill among various sections of the
Nigerian society and secure their support in the push for
the enactment of the Bill into law.
Member
organizations of the Coalition are located across all the
zones of the federation and include the organized labour,
academic organizations, journalists’ associations, women and
youths organizations, traders associations, etc. The
Freedom of Information has a secretariat that coordinates
its activities. The secretariat is hosted by Media Rights
Agenda, a non-governmental organization based in Lagos.
This
submission addresses the most critical issues in the
consideration of the Bill now pending before the Senate,
including the legal bases and rationale for an FOI regime in
Nigeria, entitlement to request information, obligations of
public authorities and agencies, exceptions, documents under
security classification, protection of “whistleblowers” and
resolution of disputes arising out of the operation of the
freedom of information regime to be created by the Bill.
The
Freedom of Information Coalition places itself at the
disposal of the Senate and of the Committee on Information
to be available to provide any additional information or
clarification that the Senate or the Committee may require
towards the consideration and passage of the Bill.
Rationale
The need
for the enactment of a legislation focused primarily on
providing for the right of access to public
records/information in Nigeria, can be justified on several
fronts, the major points being that, the first and foremost,
it is central to our collective desire as a nation to evolve
a proper and active culture of participatory democracy,
which we all agree is the preferred system of governance for
our country. In this wise, the right of access to
information would provide everyone in Nigeria, with the
unique opportunity of adequately informing themselves about
the workings of government and by so doing raise the level
of enlightened public discussions of how public officials
(whether elected or appointed) manage our affairs and
resources on our behalf.
Secondly, there can be no better catalyst to reviving the
near comatose national economy than the institution of a
right of access to public information. This is because, the
entrenchment of such a right in the scheme of things would
help to open up the way and manner in which all public
sector related business transactions are made to public
scrutiny. The effect of this on the health of the Nigerian
economy cannot over-emphasised, especially in view of the
fact that the Nigerian private sector to a large extent, is
still heavily dependent on public sector based transactions.
Consequently, enacting such a law would ensure the creation
of a level playing field for all actors in all segments of
the Nigerian economy who have to engage with this major
propelling force of the national economy and this would in
turn not only help in instilling confidence in the economic
system, but also contribute immensely towards assisting in
the realization of the government’s current economic
objective of attracting increased inflow of both new direct
foreign and local investments into the country.
Another
important benefit derivable from the enactment of an access
to information law in Nigeria is the significant savings
that would be made by the nation from the ability of the
legislation to assist with the current crusade to curb
corrupt practices in the public service, through subjecting
all government transactions to public scrutiny. It would
also help in the efficient allocation of scarce national
resources to achieve maximum returns through the ability of
the people to, using the information available at their
disposal, put government officials to task over the process
of prioritizing resource allocation for national
development.
The
Freedom of Information Bill is consistent with the vision of
the Executive arm of government about the elements required
to transform the national economy as enunciated in its
National Economic Empowerment Development Strategy (NEEDS)
document. Chapter 6 of the NEEDS document identifies a Right
to Information Act as one of two priority legislative
interventions to bolster Nigeria’s economic transformation,
the other being the Fiscal Responsibility Bill. The NEEDS
document contends, and we agree, that a “Right to
Information Act will engender openness and feedback through
a process of streamlining and rationalizing the system for
information collection, collation, storage, and
dissemination on a timely basis” in addressing what the
document calls a culture of “corruption and abuse of
positions and privileges”. Under the NEEDS calendar of
accomplishments, this Bill should have been passed in 2004.
Legal
Basis
The
freedom to seek information is guaranteed by a number of
international instruments to which Nigeria is a State
party, including the Universal Declaration of Human Rights
and the International Covenant on Civil and Political
Rights. It is also impliedly guaranteed by Section 39 of
the 1999 Nigerian Constitution. This right is similarly
guaranteed in Article 9(1) of the African Charter on Human
and Peoples’ Rights, which is part of Nigeria’s domestic law
under the African Charter (Ratification and Enforcement)
Act.
At its Summit in Maputo, Mozambique in July 2003, the
leadership of the African Union endorsed a set of
Principles, adopted the previous year by the African
Commission on Human and Peoples’ Rights, which elaborated
Article 9 of the African Charter. The Principles recognize
and guarantee the right of “everyone to access information
held by public bodies” and provides as follows:
1. “Public bodies hold information not for themselves
but as custodians of the public good and everyone has a
right to access this information, subject only to clearly
defined rules established by law.
2. The right to information shall be guaranteed by law
in accordance with the following principles:
Ø everyone has the right to access information held by
public bodies;
Ø everyone has the right to access information held by
private bodies which is necessary for the exercise or
protection of any right;
Ø any refusal to disclose information shall be subject
to appeal to an independent body and/or the courts;
Ø public bodies shall be required, even in the absence
of a request, actively to publish important information of
significant public interest;
Ø no one shall be subject to any sanction for releasing
in good faith information on wrongdoing, or that which would
disclose a serious threat to health, safety or the
environment save where the imposition of sanctions serves a
legitimate interest and is necessary in a democratic
society; and
Ø secrecy laws shall be amended as necessary to comply
with freedom of information principles.
3. Everyone has the right to access and update or
otherwise correct their personal information, whether it is
held by public or by private bodies.”
The
United Nations Special Rapporteur on the protection and
promotion of the right to freedom of opinion and expression
underscored the importance of freedom of information in his
report to the UN Commission on Human Rights in 1995 when he
stated: “The right to seek or have access to information is
one of the most essential elements of freedom of speech and
expression. Freedom will be bereft of all effectiveness if
the people have no access to information. Access to
information is basic to the democratic way of life.”
The
Commonwealth has also acknowledged and underlined the link
between freedom of information and good governance. At the
Commonwealth Heads of Government Meeting (CHOGOM) held in
Durban, South Africa, in November 1999, the body adopted a
set of Freedom of Information Principles, which had earlier
been endorsed by Commonwealth Law Ministers. It
unequivocally declared its recognition of “the importance of
public access to official information, both in promoting
transparency and accountable governance and in encouraging
the full participation of citizens in the democratic
process.”
As
earlier stated, quite apart from being a right in itself, a
regime of freedom of information facilitates the ability of
citizens to participate in government, build a united
country, hold government accountable, and ensure just and
optimal economic performance in a liberalized economy.
The
Commonwealth has emphasized that the benefits such access
can bring includes the facilitation of public participation
in public affairs, enhancing the accountability of
government, providing a powerful aid in the fight against
corruption as well as being a key livelihood and development
issue.
In his
report to the UN Commission on Human Rights in 2000, the UN
Special Rapporteur on freedom of opinion and expression
again expressed his continuing concern about the “tendency
of Governments and the institutions of Government, to
withhold from the people information that is rightly
theirs.” He stressed that “the right to seek, receive and
impart information is not merely a corollary to freedom of
opinion and expression; it is a right in and of itself. As
such, it is one of the rights upon which free and democratic
societies depend. It is also a right that gives meaning to
the right to participate, which has been acknowledged as
fundamental to, for example, the realization of the right to
development.”
He therefore urged governments to either review existing
legislation or adopt new legislation on access to
information. Among the important considerations in the
review or adoption of such laws are:
·
Public
bodies have an obligation to disclose information and every
member of the public has a correspondent right to receive
information; “information” includes all records held by a
public body, regardless of the form in which it is stored.
·
Freedom
of information implies that public bodies, publish and
disseminate widely documents of significant public interest,
for example, operational information about how the public
body functions and the content of any decision or policy
affecting the public;
·
As a
minimum, the law on freedom of information should make
provision for public education and the dissemination of
information regarding the right to have access to
information; the law should also provide for a number of
mechanisms to address the problem of a culture of secrecy
within Government;
·
A
refusal to disclose information may not be based on the aim
to protect Government from embarrassment or the exposure of
wrongdoing; a complete list of the legitimate aims which may
justify non-disclosure should be provided in the law and
exceptions should be narrowly drawn so as to avoid including
material which does not harm the legitimate interest;
·
All
public bodies should be required to establish open,
accessible internal systems for ensuring the public’s right
to receive information; the law should provide for strict
time limits for the processing of requests for information
and require that any refusals be accompanied by substantive
written reasons for the refusal(s);
·
The cost
of gaining access to information held by public bodies
should not be so high as to deter potential applicants and
negate the intent of the law itself;
·
The law
should establish a presumption that all meetings of
government bodies are open to the public;
·
The law
should require that other legislation be interpreted, as far
as possible, in a manner consistent with its provisions; the
regime for exceptions provided for in the freedom of
information law should be comprehensive and other laws
should not be permitted to extend it;
·
Individuals should be protected from any legal,
administrative or employment-related sanctions for releasing
information on wrongdoing, viz. the commission of a criminal
offence or dishonesty, failure to comply with a legal
obligation, a miscarriage of justice, corruption or
dishonesty or serious failures in the administration of a
public body.
Freedom
of Information laws across the world are now guided by a set
of principles. Originally drawn up by ARTICLE 19, the
International Centre Against Censorship, in London, “The
Public’s Right to Know: Principles on Freedom of Information
Legislation” were subsequently endorsed by the UN Special
Rapporteur on the protection and promotion of the right to
freedom of opinion and expression as well as the UN
Commission on Human Rights. The principles are based on
international and regional law and standards, evolving state
practice (as reflected, for instance, in national laws and
judgments of national courts) and the general principles of
law recognized by the community of nations.
Enacting
the Freedom of Information Bill into law will put Nigeria
substantially in compliance with these principles.
Short
Title to the Proposed Act (Freedom of Information Act)
The
title of the law is generally not of tremendous
significance. Various countries around the world, which
operate freedom of information laws, have different titles
for their laws. For instance, the world’s oldest freedom
of information law in Sweden is called the Freedom of the
Press Act (in existence since 1766). However, in the United
States of America, it is called the Freedom of Information
Act, as it is also known in Australia, in Belize, Ireland,
and Canada. The Czech Republic has a Freedom of Information
Law as does Israel. Denmark has an Access to Information Act
and an Access to Public Administration Files Act; in
Finland, the Publicity (of Public Actions) Act went into
effect on December 1, 1999, replacing the Publicity of
Official Documents Act of 1951; Greece has a Code of
Administrative Procedure; Hong Kong has a Code on Access to
Information; Japan has a Disclosure of Information Act;
South Korea has the Act on Disclosure of Information by
Public Agencies; in The Netherlands, it is called the
Government Information (Public Access) Act; New Zealand has
the Official Information Act of 1982 and the Local
Government Official Information and Meetings Act of 1987; in
Norway, there is the Public Access to Documents in the
(Public) Administration Act; Thailand has the Official
Information Act; while South Africa has the Promotion of
Access to Information Act.
What is
important is that the text of the law accords with the
principles of maximum disclosure and that information should
be defined or understood to include all records held by a
public body, regardless of the form in which the information
is stored, i.e. whether as a document, tape, electronic
recording etc.
Who is
Entitled to Request Information
The
Freedom of Information Bill provides in section 2 that every
citizen of Nigeria should have a legally enforceable right
to request access to any record under the control of a
government or public institution and that an applicant need
not demonstrate any specific interest in the information
being requested.
This
provision also accords with the principle of maximum
disclosure, which establishes a presumption that all
information held by public bodies should be subject to
disclosure, and that this presumption may be overcome only
in very limited circumstances, i.e. when the information
requested falls within the scope of exemptions. The
underlying rationale for this principle is that the right of
access to information is a basic right. In his report to
the UN Commission on Human Rights in 1995, the UN Special
Rapporteur on the protection and promotion of the right to
freedom of opinion and expression stated: “In contemporary
society, because of the social and political role of
information, the right of everyone to receive information
and ideas has to be carefully protected. This right is not
simply a converse of the right to impart information but it
is a freedom in its own right.”
The overriding goal of any freedom of information
legislation, therefore, should be to implement a regime of
maximum disclosure in practice.
Public
authorities and bodies therefore have an obligation to
disclose information and every member of the public has a
corresponding right to receive information. Everyone present
in the territory of the country should benefit from this
right. This is the principle adopted by the 1999
Constitution of the Federal Republic of Nigeria in the
application of the fundamental rights provisions in Chapter
Four. The rights therein guaranteed apply to “every
person”. We respectfully submit that this principle should
also apply to the right to information.
In the
exercise of this right, individuals should not be required
to demonstrate a specific interest in the information being
requested. To do so would not only unduly delay the
processing of requests for access to information and
increase costs unreasonably, it would also frustrate the
implementation of a freedom of information regime as the
claim that an applicant has not demonstrated or proved
sufficient personal interest in the information being
requested would provide a ready excuse for public
authorities and bodies to unfairly withhold information.
Where a
public authority seeks to deny access to information, the
onus of justifying a refusal of access at each stage of the
proceedings should be on the public authority. In other
words, the public authority must show that the information,
which it wishes to withhold, falls within the scope of
permissible exemptions.
Obligation on Public Authorities and Institutions to Publish
Information
Section
3 of the Freedom of Information Bill provides that the head
of every government or public institution to which the law
applies should cause to be published in the Federal Gazette
at least once every year certain information about that
institution.
This
provision again accords with international standards which
require that public bodies should be proactive in the
publication and dissemination of key categories of
information and, in particular, the principle that freedom
of information implies not only that public authorities and
bodies accede to requests for information but also that they
publish and disseminate widely, documents of significant
public interest, subject only to reasonable limits based on
resources and capacity.
For the
implementation of a freedom of information legislation to be
possible, members of the public must have a reasonable
familiarity with the nature and types of information and
records kept by different public bodies and authorities
which would assist them in determining what public body or
authority to approach for any record or information.
Time
Limits for Granting or Refusing Access to Information
The time
limit within which decisions must be made on requests for
access to records and information is an important means of
ensuring that public authorities process requests
efficiently and that applicants are satisfied and receive
their information within a reasonable time. The need to
ensure that applicants receive the information requested
within a reasonable time is of great importance as
information may lose its value or interest over time. The
absence of time limits therefore may undermine public
confidence in the process.
But time
limits must strike an appropriate balance between the
reasonable needs and interests of the applicant with the
practical capacity of public authorities or institutions to
process requests. In many countries, which operate freedom
of information laws, one way of achieving this balance is to
provide for a relatively strict initial time limit, which
may then be extended where necessary. This ensures that
public authorities are under some obligation to act quickly,
which often results in bringing about greater efficiency in
record-keeping and instituting access mechanisms, while
allowing for extension where the provision within the
original time limit might be unrealistic given the nature
and volume of records or information requested.
Section
5 of the Freedom of Information Bill provides for an initial
time limit of seven days, which may be extended for another
seven days. We recommend that this provision should be
retained as it strikes an appropriate balance between the
need of the applicant to receive requested information
within a reasonable time and reality of giving public
authorities and institution adequate time to process
requests for access to information with a possibility of
extending the period where justified.
Besides,
although the initial time limit may appear very strict, as
public authorities and institutions begin to implement a
freedom of information regime with the attendant improvement
and efficiency in record keeping and the handling of
requests for access to records and information, the time
needed by such authorities and institutions to process
applications will progressively reduce.
Fees
Payable to Access to Records and Information
The
Freedom of Information Bill makes extensive provisions
regarding the payment of fees for search, duplication,
review, and transcription of documents in accordance with
the principle that individuals should not be deterred from
making requests for access to information and records by
excessive charges. (See section 9 of the Bill).
It is
essential that the fees payable for access to records and
information are not so high as frustrate the right of
access. We are of the opinion that operating a freedom of
information regime would not result in any substantial
increase in costs to the government and other public
authorities because most government agencies and departments
in the country already have an existing mechanism for record
keeping, albeit it might not be very efficient. Thus the
only cost element that we would anticipate in terms of
implementing a law of this nature, is the added cost of
making this existing public record keeping mechanism
efficient, in meeting the needs of an access to information
regime. This minimal cost element envisaged would be
adequately taken care of by the immense benefits which a
regime of access to information brings to the society by
instituting greater transparency, accountability and
efficiency and as such costs ought not to be an overriding
consideration. The cost to the government must be seen in
the light of the capacity of a Freedom of Information Act to
advance democracy and enhance public participation. Moreover
as the government departments and agencies become more
efficient in their record keeping and in handling requests
for access, the cost will reduce progressively.
The
provisions regarding fees in the Freedom of Information Bill
are consistent with international standards in this area and
we see no reason for any changes to these provisions. In
particular, we recommend that the Bill retain the reference
to “reasonable standard charges”, the fee waiver for
requests in the public interest and the prohibition of
“uneconomic” fee collection and advance payments.
Destruction or Falsification of Records
Section
10 of the Freedom of Information Bill makes it a criminal
offence punishable on conviction with three years
imprisonment for any officer or head of any government or
public institution who tries or willfully destroys any
record kept in his or her custody or attempts to alter such
documents before they are released to any person requesting
access to them.
This
provision is necessary to protect the integrity and
availability of public records. It is not inconceivable
that when public authorities or bodies do not wish to grant
access to certain records, which have been requested by
members of the public, they might resort to destruction or
falsification of such records. Recent experience in the
United States where officials of the Enron Corporation
destroyed large volumes of documents in order to cover up
monumental frauds within the corporation bear testimony to
this possibility.
Principles of freedom of information legislation require
that the law should provide that obstruction of access to
public records or the willful destruction of records is a
criminal offence. The principles also require that the law
should establish minimum standards regarding the maintenance
and preservation of records by public bodies, for instance,
by providing that such bodies should be required to allocate
sufficient resources and attention to ensuring that public
record-keeping is adequate. To this extent, the Freedom of
Information Bill does not go far enough.
In
addition, the principles also require that in order to
prevent any attempt to doctor or otherwise alter records,
the obligation on the public authority or institution to
disclose should apply to records themselves and not just the
information they contain. In order words, public
authorities and institutions should be obliged to disclose
the records kept by them and not just the information
contained in those records. This reinforces the provisions
of section 3 of the Bill which require the head of every
government or public institution to publish in the Federal
Gazette at least once a year a description of documents,
manuals files, reports and other such records kept by that
institution.
Exemptions from Right of
Access
The
Freedom of Information Bill contains a range of exemptions
from the general right of access to information, including
in cases of law enforcement investigation, information which
may be injurious to the conduct of international affairs and
defence; trade secret or financial, commercial, scientific
or technical information which may prejudice the competitive
position of a government or public institution; personal
information; third party information; legal
practitioner/client privilege, and course or research
materials.
In this
regard, the Bill satisfies the requirement that a complete
list of the legitimate grounds, which may justify
non-disclosure of information or records, should be provided
in the law and that the list should include only interests
which constitute legitimate grounds for refusing to disclose
documents. The general principle is that public bodies or
authorities should grant all requests for information unless
they can show that the information falls within the scope of
the limited regime of exemptions.
Under
the Freedom of Information Bill, no public body or authority
is completely excluded from the application of the proposed
law, even if many of their functions fall within the
exemptions. In accordance with freedom of information
principles, non-disclosure of information has to be
justified on a case-by-case basis. The law also applies to
all branches of government (that is, the executive,
legislative and judicial branches) as well as to all
functions of government (including, for example, functions
of security and defence bodies). The Bill also applies to
all tiers of government – Federal, State and Local
Government.
The principles also provide that a refusal to disclose
information is not justified unless the public authority can
show that the information meets a strict three-part test.
The three-part test include that: the information must
relate to a legitimate aim listed in the law; the disclosure
must threaten to cause substantial harm to that aim; and the
harm to the aim must be greater than the public interest in
having the information.
A key
aspect of the principles in relations to exemptions and the
three-part test is the requirement that even if it can be
shown that disclosure of the information would cause
substantial harm to a legitimate aim, the information should
still be disclosed if the benefits of disclosure outweigh
the harm. For example, certain information may be private in
nature but at the same time expose high-level corruption
within government. In such cases, the harm to the legitimate
aim must be weighed against the public interest in having
the information made public. Where the public interest in
having the information is greater, for instance, in such a
case where the longer-term public interest is best served by
exposing and rooting out the corruption, the law should
provide for disclosure of the information.
In order
to maintain the principle of maximum disclosure underlying
any freedom of information regime, it is essential that all
refusal to disclose are subject to a public interest
override.
The
Freedom of Information Bill provides for public interest
disclosure by public authorities in relation to certain
exemptions, for example relating to international affairs
and defence (see section 13(2) of the Bill).
Judicial
Review
Most
Freedom of Information laws around the world provide for
decision-making on freedom of information at three levels
namely, by the public authority or institution to which the
original request is made, by an independent administrative
body with specific powers in relation to freedom of
information, and by the courts. These laws generally
establish an independent administrative body, such as an
Information Commissioner or an Ombudsman, with various
powers to ensure that the legislation is being applied
properly and in a timely fashion.
Section
22 of the Freedom of Information Bill provides that any
person who has been refused access to a record requested
under the proposed Act may apply to the Court for a judicial
review of the decision. But the Bill does not provide for
an independent administrative body to promote compliance
with its provisions and to provide an accessible form of
appeal against refusals to disclose information by public
authorities.
Although
we appreciate the importance of having an independent
administrative body to review refusals by public authorities
or bodies as a first step before any approach is made to the
courts, we do not think that such a body would be feasible
in this case.
For an
administrative body to be effective, it must be accessible
to people in all parts of the country. The cost of setting
up an independent administrative body, which would have
offices and personnel in all parts of the country, would be
phenomenal. The inability or failure of the government to
provide the resources for the setting up of such a body may
ultimately frustrate the implementation of the law.
Since
the courts already exist in all parts of the country, no
additional cost would be required in providing effective
judicial oversight for the implementation of the freedom of
information regime. For this reason, we suggest that the
provisions relating to judicial review should be left as
they are.
In any
event, under section 32 of the Bill, each government or
public institution is required each year to submit to the
Attorney-General of the Federation a report for the
preceding fiscal year stating the number of determinations
made by that department or institution not to comply with
requests for records made to it and the reasons for such
determination as well as other information, including the
number of requests for records pending before it as of
October 31 of the preceding year, how long those requests
have been pending, the number of requests for records it
received, the total amount of fees collected, the number of
full time staff devoted to processing requests, etc. The
Attorney General is also required to develop reporting and
performance guidelines for the reports required in according
with the section. All these reports are to be made public.
Under
section 33(4) of the Bill, the Attorney-General of the
Federation is in turn required to report to relevant
committees of the National Assembly on the implementation of
the proposed Freedom of Information law, including
information about the number of cases arising under the
proposed Act, the exemptions involved in each case, the
disposition of such cases, the cost, fees and penalties
assessed.
The
Attorney General is also required to include in the report a
description of the efforts taken by the Ministry of Justice
to encourage all government or public institutions to comply
with the Act.
These
are additional provisions, which will aid monitoring of
implementation of the proposed Act with oversight functions
resting ultimately with the National Assembly.
Documents Under Security
Classification
Section
31(1) of the Freedom of Information Bill provides that the
fact that any record in the custody of a government or
public institution is kept by that institution 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 a request for disclosure
under the provisions of the Act. Section 30(1) of the Bill
also overrides the provisions of the Criminal Code, the
Penal Code, the Official Secrets Act or any other such
enactment with respect to disclosure of any record.
These
provisions are consistent with a key principle of freedom of
information laws which requires that other legislation
should be interpreted, as far as possible, in a manner
consistent with the provisions of the Freedom of Information
law and that where this is not possible, other legislation
dealing with publicly-held information should be subject to
the principles underlying the freedom of information
legislation.
In
particular, the principle requires that secrecy laws should
not make it illegal for officials to divulge information,
which they are required to disclose under the freedom of
information law.
Ideally,
laws such as the Official Secrets Act and similar provisions
contained in the Criminal Code, the Penal Code, and other
such laws ought to be repealed to actively promote open
government. However, the Freedom of Information Bill falls
short of this requirement. However, it is hoped that in the
longer term, a commitment will be made to bring all laws
relating to access to information into conformity with the
spirit and principles underlying the freedom of information
law.
In
addition, the principle also requires that officials should
be protected from sanctions where they have acted reasonably
and in good faith, disclosed information pursuant to a
freedom of information request, even if it subsequently
transpires that the information is not subject to
disclosure. This is what the provisions of section 30(1) of
the Freedom of Information Bill seek to achieve. Otherwise,
the culture of secrecy, which pervades many government
bodies and institutions, will remain, as officials may be
excessively cautious about requests for information, to
avoid any personal risk.
Protection for Whistleblowers
Section
30(2) of the Freedom of Information Bill provides that
nothing contained in the Criminal Code or the Official
Secrets Act shall prejudicially affect any public officer
who, without authorization, discloses to any person, any
public record or information which he reasonably believes to
show violation of any law, rule or regulation,
mismanagement, gross waste of funds, fraud, and abuse of
authority or a substantial and specific danger to public
health or safety notwithstanding that the information was
not disclosed pursuant to the provisions of the proposed
Act.
A
principle of freedom of information legislation worldwide is
that individuals should be protected from any legal,
administrative or employment-related sanctions for releasing
information on wrongdoing. "Wrongdoing" in this context
includes the commission of a criminal offence, failure to
comply with a legal obligation, a miscarriage of justice,
corruption or dishonesty, or serious misadministration
regarding a public body. It also includes a serious threat
to health, safety or the environment, whether linked to
individual wrongdoing or not.
Whistleblowers should be protected as long as they acted in
good faith and in the reasonable belief that the information
was substantially true and disclosed evidence of wrongdoing.
Such protection ought to apply even where disclosure would
otherwise be in breach of a legal or employment requirement.
In some
countries, the protection of whistleblowers is conditional
upon a requirement to release the information to certain
individuals or oversight bodies. While this is generally
appropriate, protection should also be available, where the
public interest demands, in the context of disclosure to
other individuals or even to the media. The "public
interest" in this context would include situations where the
benefits of disclosure outweigh the harm, or where an
alternative means of releasing the information is necessary
to protect a key interest.
The
principles recognize that such a provision is important
because of situations where whistleblowers may need
protection from retaliation, where the problem is unlikely
to be resolved through formal mechanisms, where there is an
exceptionally serious reason for releasing the information,
such as an imminent threat to public health or safety, or
where there is a risk that evidence of wrongdoing will
otherwise be concealed or destroyed.
Conclusion
As
stated earlier, the Freedom of Information Coalition and its
members stand ready to provide any additional information or
clarification that the Senate or any of its relevant
Committees may require towards the consideration and passage
of the Bill. Should you require our assistance, we would be
pleased to render it, including by providing relevant
resource materials and comparative literature on freedom of
information laws around the world.
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