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Sri Lanka’s RTI Act: Benefits of disclosure outweigh harm

By Venkatesh Nayak*
On 04 August, 2016, the Hon’ble Speaker of the Parliament of Sri Lanka certified their RTI Bill as having been “duly passed by Parliament”. With this certification, the RTI Bill has become law in Sri Lanka.
Unlike many countries that have adopted the Westminster form of government, a Bill duly enacted by Sri Lanka’s Parliament does not have to go to the Head of the State for his/her assent, to become law. A certification on the Bill appended by the Speaker under Article 79 of the Constitution that it has been duly enacted by Parliament (unicameral or one House) is enough to make it law. The President’s certification is required only when a Bill adopted by Parliament has also received people’s approval through a referendum. So Sri Lanka’s RTI Act (see attachment) has entered the statute book on 04 August, 2016.
Only Bhutan, in South Asia, remains without a national level RTI law despite guaranteeing RTI as a fundamental right to its citizens.

Salient features of Sri Lanka’s RTI Act and its phased implementation:

1) Objectives of the RTI Act: According to the Preamble, Sri Lanka’s RTI Act gives effect to the citizens’ fundamental right to information from government and public authorities guaranteed under Article 14A of the Constitution. The legislation seeks to foster a culture of transparency and accountability in public authorities, promote people’s full participation in public life, promote accountability and good governance and combat corruption.
2) Phased manner of implementation: The following provisions have come into force with immediate effect after the Speaker’s certification:
a) the definition of terms of art used in the Act (Section 43), the constitution of the RTI Commission (Part IV);
b) the appointment of information officers and designated appeals officers (Section 23),
c) the power of the Minister for Mass Media to make Regulations to implement the Act (Section 41);
d) the power of the RTI Commission to make Rules relating to the implementation of the Act (Section 42);
f) the protection offered to officers releasing information in good faith (Sections 36 & 40); and
g) the prevalence of the Sinhala text over the Tamil version in the event of inconsistency of interpretation (Section 44)
All other provisions of the Act will become operational within a minimum of six months and a maximum of one year from the date of the Speaker’s certification (Section 1).
3) Who has access rights?: All citizens of Sri Lanka will have the right to ask and get information under the RTI Act (Section 3). Both incorporated bodies (such as companies, trusts and NGOs) and unincorporated bodies (body of individuals not registered or recognised as a legal entity under any law) have the right to seek and receive information under this law, provided 3/4ths of the members of such bodies are citizens of Sri Lanka (Section 43). Foreigners and bodies that are primarily comprised of members who are not Sri Lanka citizens will not be able to use the law to seek information from public authorities (the citizens’ right to formally seek and receive information will be operationalised after 6 months but no later than 03 August, 2017.)
4) Definition of ‘information’ and forms of information access: Information includes any material that is recorded in any form such as records, documents, emails, opinions, advice, log books, contracts, reports, samples, models, draft laws, plans, maps. drawings, film, photograph, audio and visual recordings and all machine readable records amongst others (Section 43). A requestor is entitled to (Section 27):
i) inspect relevant work, documents, records;
ii) take notes, extracts or certified copies of documents or records;
iii) take certified samples of materials;
iv) get information in electronic form such as diskettes, floppies, tapes video cassettes or computer printouts.
5) Who has the duty to disclose information?: A “public authority” has the primary responsibility to disclose information to citizens. “Public Authority” means (Section 43):
a) the offices of the President, the Prime Minister, all Ministries and government departments;
b) Parliament and all local authorities such as Pradeshiya Sabhas and Provincial Councils;
c) the Supreme Court and all other courts, tribunals and institutions created and established for the administration of justice;
d) the defence forces and intelligence agencies;
e) all bodies or offices created or established by or under the Constitution or any written law;
f) all public corporations and companies in which the State or a public corporation hold 25% of the shares (jointly or severally) or otherwise have a controlling interest;
g) all private entities or organisations carrying out a statutory service, public service or function under a contract or agreement or license from the government or its agencies or local bodies (but limited to the extent of such services and excluding their other work);
h) NGOs substantially funded by government or any department or other authority established or created by a Provincial Council;
i) NGOs serving the public that are substantially funded by a foreign government or international organisation but only to the extent of such service rendered to the public;
j) all higher educational institutions including private universities and professional institutions that are established, recognised or licensed under any written law or wholly or partly funded by the State or a public corporation or any statutory body created by a statue of a Provincial Council; and
k) all private educational institutions including those who offer vocational or technical education that are established, recognised or licensed under any written law or wholly or partly funded by the State or a public corporation or any statutory body created by a statue of a Provincial Council.
6) Duty of proactive disclosure of information: Twice every year, at the end of June and December, every Minister is required to prepare a report giving citizens the following information in the official languages (Section 8):
a) the particulars of the organisation, functions, activities and duties of the Minister/Ministry and of all public authorities falling under his/her/its jurisdiction including details of decision-making procedures;
b) the norms set by them for performing their duties, functions and exercising their powers;
c) all rules, regulations, manuals and other categories of records used by them to discharge their functions and duties or exercise their powers;
d) the budget allocated to them indicating details of all plans, proposed expenditures and reports on disbursement of funds;
e) name and designation of the information officers and details of facilities available to citizens for obtaining information from them.
Access to these categories of information is to be provided in electronic form or by permitting public inspection of such information and copies may be supplied at fee rates specified by the RTI Commission.
f) Additionally, every Minister is required to provide information to the people in general and particularly to those who are likely to be affected by any project, at least three months prior to its start date. In the case of urgent projects information may be supplied one week prior to their start date. Subsequently, the Minister is required to provide updated information about the project to citizens who formally apply for such information. This requirement is only for projects that are valued at more than USD 100,000 or SLR 500,000 (Section 9).
g) Every public authority must display at a conspicuous place on its premises, names and contact details of the IO, the officer designated to decide appeals and the RTI Commission apart from the fee that will be charged for providing information (Section 26).
7) Formal request procedures: The RTI Act provides for the following procedures for citizens to seek information formally:
a) The request must be submitted in writing or in electronic form to the designated Information Officer (IO) (Section 24). If no such officer has been appointed the head or the chief executive officer of the public authority shall be the IO. An IO must provide reasonable assistance to requestors at the time of seeking information (Section 23). If they are unable to submit a written request, the IO has a duty to put such requests down on paper and process them.
b) Reasons need not be given for seeking information, unless its is an urgent information request made to safeguard the life or liberty of a person (Section 24);
c) A request for information must contain sufficient details for the IO to identify the information (Section 24);
d) Every requestor is entitled to get an acknowledgement from the IO upon submitting the request (Section 24).
e) As far as possible the IO should endeavour to provide the requested information immediately and keep a record of the same if the requestor is satisfied with the res\ponse (Section 24);
f) If an IO is unable to provide the information sought by the requestor immediately, he/she may take 14 working days to respond. Both supply of information or a decision to reject the request must be communicated to the requestor within this time frame. If the request is for voluminous information or is required to be searched in multiple offices not located in the same town or city this time limit may be extended by a further period of 21 calendar days. The IO must provide written reasons for the time extension to the requestor. So the maximum time frame for an IO to provide the information may be a little less than two months (Section 25);
g) An IO may reject a request for information only on the basis of exemptions to disclosure listed under Section 5 of the Act (Section 25);
h) Information concerning the life and personal liberty of a citizen must be supplied within 48 hours of the request (Section 25);
i) The RTI Commission is empowered to fix the schedule of fees to be paid for obtaining information under the Act (Section 14).
j) Every person affected by a decision of any officer of a public authority has the right to know the reasons behind such decision, provided he makes a formal application to such officer (Section 35).
k) If information sought relates to a third party or has been supplied by such third party treating such information as confidential, must be consulted before the IO makes a decision on the request. Third party information may be disclosed if the RTI Commission directs disclosure in the larger public interest (Section 29).
8) Exemptions to disclosure and the public interest override: It is possible to identify at least 20 grounds on the basis of which access to information may be denied under the RTI Act (Section 5). An IO is required to refuse access to information if (grounds are summarised below):
i) it is personal information including medical records, and the disclosure has no relationship to any public activity or interest or if disclosure will cause unwarranted invasion of the privacy of an individual (this exemption may be overridden in larger public interest or if confidentiality is waived by the person concerned);
ii) disclosure would undermine the defence of the State or its territorial integrity or national security or seriously prejudice Sri Lanka’s international relations or its agreements with other countries or its obligations under international law or if information was given by it or obtained by it in confidence;
iii) disclosure would seriously prejudice Sri Lanka’s economy in relation to premature disclosure of decisions to change or continue the government’s economic or financial policies relating to exchange rates, taxation, regulation of banking or credit or stabilising or controlling or regulating prices, rents, wages, salaries etc., and entering into overseas trade agreements;
iv) disclosure would reveal information of commercial confidence, trade secrets or intellectual property recognised by the 2003 law and such disclosure would harm the competitive position of a third party (this exemption may be waived by the public authority in the larger public interest);
v) it will disclose professional communication prohibited from disclosure under any law, including communication between the Attorney General or his/her assisting officers and any other public authority in the performance of his/her duties;
vi) it is information that needs to be kept confidential because of a fiduciary relationship;
vii) disclosure will cause grave prejudice to crime detection or prevention or the arrest of offenders or expose confidential sources of information used by law enforcement agencies;
viii) disclosure would constitute contempt of court or infringe privileges of Parliament or of a Provincial Council or if disclosure would be prejudicial to the authority and impartiality of the judiciary;
ix) disclosure would harm the integrity of an examination process;
xi) it is information relating to a Cabinet Memorandum about which decision has not yet been taken; or
xi) it is election-related information that is required to be kept confidential under any election law.
Almost all exemptions will apply eternally except those relating to the government’s financial and economic policies. Exempt information relating to such policies may be disclosed after 10 years. Information relating to inconclusive trade negotiations will not be disclosed even after 10 years.
However almost all exemptions (save the inconclusive international trade negotiations) are subject to a public interest override. If the benefits of disclosure outweigh the harm then such exempt information may be disclosed. An IO may seek the advice of the RTI Commission about the applicability of an exemption to the information requested. The RTI Commission is required to tender its advice within 14 calendar days,
9) Appeals procedures: The RTI Act creates a three-tiered appeals mechanism for citizens to seek redress of their grievances such as, refusal by an IO to receive their request, rejection of a request for information, supply of incomplete, misleading or false information, non-adherence to timelines for disposing an information request, refusal by an IO to provide access to information in the form requested originally, or if the requestor has reason to believe that the information he/she sought has been destroyed in order to prevent access.
The 1st level of appeal is internal to the public authority which holds the information sought. It must be submitted within 14 calendar days. The designated appeals officer (AO) is required to issue a written receipt of the appeal to the appellant within 3 working days. The AO must decide the appeal within weeks of its receipt (Section 31).
The 2nd level of appeal lies with the RTI Commission. An aggrieved citizen may appeal a decision of the AO before the RTI Commission within 2 months. An appeal may be filed with the RTI Commission even in the absence of a decision from the AO within the same period of time. In a proceeding before the Commission the burden of proving that it acted in compliance with the provisions of the RTI Act is on the public authority against which the appeal is entertained (Section 32).
At both these levels, an appeal may be filed by the authorised representative of the aggrieved requestor (Section 33).
The 3rd level of appeal lies with the Court of Appeal within one month of the date of the RTI Commission’s decision.
10) Constitution, powers and functions of the RTI Commission: The RTI Act provides for the establishment of a Commission to monitor and guide the implementation process apart from acting as the 2nd tier of appeal (Part IV & Schedule).
a) The RTI Commission consists of five members one of whom shall be nominated to be the Chairperson by the President of Sri Lanka. They serve for a term of five years each from the date of appointment. There is no bar on the number of terms for which a person may be appointed to the RTI Commission nor an upper age limit for members.
b) The Members of the RTI Commission are appointed by the President on the recommendation of the Constitutional Council. The Council may recommend candidates from nominations received from the Bar Association of Sri Lanka, organisations of publishers, editors and media persons and other civil society organisations or find candidates on its own.
c) Candidates recommended by the Constitutional Council must be distinguished persons in public life with proven knowledge, experience and eminence in the fields of law, governance, public administration, social services, journalism, science, technology or management. They must not be members of any elected body under the State or holders of judicial office or any office of profit or engaged in any business or profession.
d) The President may remove a member of the RTI Commission on the recommendation of the Constitutional Council on grounds of permanent physical incapacity or unsoundness of mind, or if he/she is convicted of an offence by a competent court or is unfit to perform his/her duties because of moral turpitude.
e) Apart from receiving and deciding appeals of the 2nd level, the RTI Commission is required to monitor and guide the implementation of the RTI Act, make recommendations for reform for implementing the Act, issue guidelines relating to fees chargeable for supplying information, indicate when information may be supplied free of charge, prescribe fees for providing copies of information that is required to be proactively disclosed under Section 8 of the Act.
f) In order to be able to perform its duties and functions, the RTI Commission will be vested with the power to hold inquiries, examine persons on oath and require them to produce information, including exempt information (exempt information will be examined by the RTI Commission in confidence), inspect the information held by a public authority, direct it to provide information in a particular form and direct it to proactively disclose information under Section 5 of the Act or direct reimbursement of fees collected for supplying information late.
g) The RTI Commission shall have its own fund. It will receive funds from Parliament from time to time and also collect donations, gifts or grants from local and foreign sources. Details of such donations, grants or gifts must be made public. The accounts of the RTI Commission must be audited every year in accordance with Article 145 of the Constitution.
h) All inquiries before the RTI Commission shall be treated as judicial proceedings. The members and employees of the Commission will be public servants for the purpose of the Penal Code and the Commission shall be treated as a scheduled institution for the purpose of the Bribery Act.
i) The RTI Commission is required to prepare an annual report of the work done by it and submit it to Parliament. It will also receive reports regarding the manner of implementation of the RTI Act from all public authorities. All these reports are required to be made public by the Commission, especially through its website.
j) The RTI Commission may recommend disciplinary action to the appropriate authorities against errant officers when they contravene the provisions of the RTI Act (Section 38).
k) A Director General appointed by the RTI Commission, will be responsible for the general supervision, direction and management of the affairs of the Commission.
10) Offences and Penalties: A person may be liable for monetary fine up to SLR 50,000 or a jail term of up to 2 years or both if he/she commits the following offences (Section 39):
i) deliberately obstructing the supply of information or intentionally providing incorrect, incomplete or inaccurate information;
ii) destroying, altering or concealing information under one’s custody;
iii) failure or refusal to appear before the RTI Commission when requested to so do;
iv) refusal to be examined by the RTI Commission or to produce information in his.her possession or deliberately providing false information under oath;
v) failure or refusal to give effect to a decision of the RTI Commission;
vi) resisting or obstructing the Commission or its employee at work; and
vii) disclosure of information by a Member of the RTI Commission in contravention of he provisions of the Act [Section 12(7)].
A person may be convicted of any of offences by a Magistrate’s court. The RTI Commission is responsible for initiating a prosecution under the RTI Act. However the Act is silent about the authority competent to launch a prosecution against a member of the RTI Commission for violating Section 12(7) of the RTI Act.
11) Preservation of official records: The RTI Act requires all records that were held by any public authority on the date of its coming into force for a period of at least 10 years. All official records created after the operationalisation of the Act must be preserved for at least 12 years. Records relating to a request made under the RTI Act shall not be destroyed during the pendency of any proceeding under the Act, including a judicial proceeding launched under the Act. Every Minister has the duty to ensure that all official records under his jurisdiction are properly catalogued and indexed in order to facilitate access to information under the Act [Section 7].
12) RTI Act overrides all other written laws to the extent of inconsistency: If any other law permits denial of access to information to a citizen but those reasons cannot be justified under the provisions of the RTI Act, the information will have to be disclosed to the requestor who uses the RTI Act to get such information (Section 4).

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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