The Island: Sri Lanka: Wednesday,
March 29, 2017.
Failures
and Successes
Elected to
restore democracy, the interminable postponement of elections on petty excuses
is a big blot. Non-progress on reconciliation is best captured by its partner,
the TNA, saying Tamils have reached the end of their tether. The independent
Commissions have no funds to include all members in the work (Election
Commission) or funds but no work or TOR (Delimitation Commission). Even the
co-sponsorship of UNHRC Resolution 34/L.1 which promises "to fully
implement the measures identified in the resolution [30/1] of 2015," is
not convincing of our intentions on reconciliation.For, even as 30/1 calls for
the prosecution of war criminals with the use of foreign judges and is
unfulfilled, the President and PM say there will never be foreign judges.
Moreover, the President adds in hot speeches before the Army and Monks that he
will never allow "national heroes" who massacred Tamil civilians in
defeating the LTTE to be charged.
With that
horrible record, there are some notable achievements, however, that fail to get
the credit they deserve. One important achievementis the absence of fear.
Another is that water-starved Jaffna now has many huge water tanks coming up.
As the infrastructure is nearing readiness, it is bickering among us Tamils on
whether Water from Kilinochchi can be diverted that introduces uncertainty over
water for Jaffna. Water tanks without water would be like our democracy without
elections. If that water is refused, the tanks will use seawater desalinated by
reverse osmosis, which however will beexpensive.
RTI –
Towards Open Meetings
The most
recent, significant achievement in governance is our Right to Information Act
(RTIA).Many countries claim to be democracies but all are flawed. What is
important is that we move towards being a democracy. Over 100 countries around
the world have RTI Laws, Sweden’s 1766 Freedom of the Press Act having been
first.Such acts are usually borne of a thirst for freedom following an era of
autocracy as ours was after our shackles were removed in 2015. RTIA empowers us
to find out what our rulers are doing by giving us access to government
documents. Our global RTI rating is at
third place. Scoring 131 out of 150,we are just behind Mexico (136) and Serbia
(135), barely ahead of Indiaat 128 (whose laws were borne of the suppression of
information, press censorship and abuse of authority during the Emergency of
1975-77). Surprisingly many Western European countries and the US (83), Canada
(90), Australia (83) and China (70) score poorly, well behind Russia (98).
The US has a
low score because its Freedom of Information Act (FOIA) was enacted in 1966
before the world’s legacy of human rights blossomed, and after years of debate
over the opposition of President Lyndon Johnson. FOIA emphasizes the devolved
nature of power and leaves it to state governments to make their own FOI laws.
FOIA has many exemptions. Officials need not comply with requests to do
research, answer written questions or create records like lists of statistics.
RTIA is far ahead.
Rights:
Abridged by Culture of Arrogance
In the past,
our administrators had tight control on information. "It is
confidential" they would say. "Why do you want to know?" they
would ask. Now we need to go to the same people who are bound by RTIA which
says (Section 3(1))
Subject to
the provisions of section 5 of this Act, every citizen shall have a right of
access to information which is in the possession, custody or control of a
public authority.
Any
information, whether at the central government or provincial or local! Access
to information is a right. The person wishing access does not have his right
abridged by administratorsapproving the reasons for requests. The RTIA, in our
democracy, is about distributing power from ourrulers to us citizens.
Administrators, who once controlled the release of information, have had that
power removed by RTIA. They need to accept that and learn to live with the
change.
However, I
have already seen the old habits dying hard as those requesting information are
asked why, thereby violating RTIA’s 24(5)(d). To exercise a right that is ours,
we need noreasons. To refuse us, the onus of giving reasons falls on
administrators.
Restrictions
on RTI
The
restrictions on the information to be supplied through RTI are stated in
Article 5. For most practical purposes 5(1)(a) would be where we meet everyday
requests:
5. (1)
Subject to the provisions of subsection (2) a request under this Act for access
to information shall be refused, where–
(a) the
information relates to personal information the disclosure of which has no
relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the larger public
interest justifies the disclosure of such information or the person concerned
has consented in writing to such disclosure;
Subsections
5(1) (b) to (n) will not concern most of us because they are obvious exemptions
on the disclosure of medical records or exam papers, and rare occurrences like
affecting a criminal investigation or national defence. We will leave that out
of this general article.
Most
problematic RTIA requests would relate to 5(1)(a) where the key phrase is "Personal
information the disclosure of which has no relationship to any public activity
or interest".
At the
Election Commission, for example, if there is a request for voter registration
lists, one objection may be that it is a violation of privacy and will help
commercial interests make mailing lists. On the other hand, the public and
national interest justifies the disclosure in a) preventing ghost voters on
voter lists and strengthens democracy and b) eliminating the practice of giving
false addresses to exploit regional quotas for university admission.
However,
Section 5(4) is relevant:
[A] request
for information shall not be refused where the public interest in disclosing
the information outweighs the harm that would result from its disclosure.
Public
interest is harmed when we refuse to release such germane information that
would deter cheating. It is in the public interest to make mailing lists to
inform the public on policy matters and even good commercial products.
Parliament has subjected all data to disclosure, and we have no business
subverting a law just because we think it is bad law or think someone will
profit.
Private
Sector
RTI laws
typically exclude the private sector from their jurisdiction. With
privatization on government’s agenda, information presently in the public
domain may shift to the private sector. Perhaps being mindful of this, the law
covers many private entities. These are institutions where the government has
more than a 25% interest; a private entity carrying out a statutory or public
function, but only to the extent of activities covered by that function; NGOs
that are substantially funded by the government, a foreign government or
international organization; higher educational institutions including private
universities and professional institutions; and private educational
institutions.
Our
Unpreparedness
All agencies
are required to designate Information Officers to contact for information, and
Designated Officers (DOs) to hear appeals. This has not been done in many
institutions, particularly in appointing DOs and staff for handling the massive
load of work. Cadre positions and large budgets will be required.
At many
agencies, I see untrained officials unable to realize that they must comply
with information requests in time, and unlawfully asking why the information is
being requested and even denying requests. I do not see the prescribed contact
details of the RTI Commission, IO, DO listed prominently at these agencies and
their websites, including the IO’s email address and fax number since emailed
or faxed information requests are also permitted in addition to oral requests.
Private agencies, especially schools, generally will remain unaware of their
RTIA obligations unless someone tells them.
I have seen
US FOIA officials swamped with work and unable to meet statutory deadlines even
with large staffs and dedicated copiers. Redaction when necessary would demand
skilled manpower. With requests for research definitely on the horizon for us
unlike the US, and only one IO at most agencies, I do not know how we will
cope.
Fees
Generous fees
have been prescribed by Gazette No. 2004/66 –Feb. 03, 2017. Free are forms and
their processing, reports by email, the first four A4 sheets of reports,
whether printed or photocopied. Thereafter it is Rs. 2 for one-sided and Rs. 4
for double sided A4 photocopies, Rs. 20 for copying information on to a mass storage
device etc.
Significantly
departing from the US where no research work can be demanded, the fee for study
or inspection is Rs. 50/hour with the first hour free. That is well below a
labourer’s rate.
These
commendably low rates will add to the work. Can we cope?
Prognosis
Like our
muscles, rights need to be exercised to be strong. Will we? We must, and
thereby safeguard this rare bright spot in our flawed democracy.
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