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Some legal reflections on Sri Lanka’s new Right to Information Act

(this piece originally ran in the Sunday Times)

On August 4, 2016, the Government of Sri Lanka passed the Right to Information (RTI) Act, No. 12 of 2016, bringing to fruition over 20 years of campaigning by journalists, civil society, legal professionals and others. The Act means that Sri Lanka has now joined the community of 112 countries globally which have adopted RTI laws. It also addresses the anomaly whereby Sri Lanka was the only major country in South Asia which did not have such a law (Bhutan still does not have one).

Sri Lanka did not just pass an RTI law; it passed a good one! According to the highly respected RTI Rating (www.rti-rating.org), the Act scores 121 points out of a possible total of 150, coming in ninth position globally out of the 111 countries which are assessed on the rating. It comes in second place in South Asia, behind India, a major success story in this area, with 128 points and in fourth place globally.

Congratulations are due to the Government, to the Parliament and especially to the many campaigners who fought tirelessly, especially in the final stretches, to make this happen. Now, the far more complicated task of implementing the law begins. Hopefully the same parties will contribute to that process to ensure that this process is also successful.

Some explanation as to how the RTI Rating works may be useful here. The rating is broken down into seven main thematic categories and then 61 individual indicators. The Sri Lankan law does best in terms of Scope of the Act (where it scores 90% of total possible points), due to its admirably broad coverage of information and public authorities;

It also scores high on Promotional Measures (88%), due to the obligations laid by the Act on public authorities to appoint information officers, maintain their records in good condition and report annually on implementation. Appeals score fairly well (87%), due to the creation of an independent and empowered oversight body in the form of the Information Commission. Right of Access garners an appreciable rating (83%), due to the constitutional guarantee of RTI adopted last year and a clear statement of the right in the Act itself. It may be noted that the Supreme Court of Sri Lanka specifically approved the composition of the commission in its determination relating to the Right to Information Bill.(S.C. (S.D.) No 22/2016).

The Act falters a bit, however, when it comes to Exceptions (77%). This is due in part to a few overbroad exceptions, specifically those in favour of communications between professionals, the privileges of Parliament and trade agreements.

Another problem is that a few exceptions – namely those in favour of information provided by a third party, contempt of court and cabinet memos – do not incorporate a harm test, i.e. they apply regardless of whether or not disclosure of the information would pose a risk of harm to a protected interest.

Some of these exceptions were considered, and upheld, by the Supreme Court in its Determination on the Bill. The court upheld the exception in favour of trade agreements on the basis that this was part of a wider notion of national security. Whatever the merits of this in terms of the Constitution, it must be noted that under international law, it is established that national security should be construed narrowly (absent which it has proven ripe for abuse). Clear standards on this may be found in the Tshwane Principles on National Security and Access to Information. The court also, with very little reasoning, upheld the exception in favour of contempt of court, after expanding it to include a reference to prejudice to the judiciary. The court failed to consider carefully the scope of contempt of court and the fact that it does not in all cases include a harm test.

The provisions in the Act on Requesting Procedures (73%) could also be improved. This is for example by requiring public authorities to transfer requests when another authority holds the information and by eliminating the 14-day period to provide information (on top of the 14 days public authorities are given to assess requests). Further The Act may have clarified what charges may be levied for providing information and recognised a right to reuse freely information which has been provided in response to a request. Finally, a score of only 50% is achieved in the area of Sanctions and Protections, due to the lack of sanctions for public authorities which systematically fail to respect their obligations under the law and the lack of protection for whistleblowers.

Some of these issues could be addressed through legal instruments adopted under the Act such as regulations adopted by the minister (in consultation with the Commission) or rules adopted directly by the Commission.

Regulations could, for example, clarify that the Act applies to both information and documents (to indicate that requesters might either ask for a type of information – the amount spent on transportation for ministers in a given year – or a document – the 2015 budget – which is not currently clear). They could also indicate that public authorities should transfer requests when this is warranted and that public authorities should provide training to their staff on this new right. Rules on open reuse of information could also be put in place via policy instruments. In many countries, for example, open licences which allow for such reuse are automatically appended to all government documents.

The Commission has the power to adopt rules on fees, which could make it clear that it is free to make requests, that charges may only be imposed for reproducing and sending information to a requester, and that poorer citizens do not have to pay even those fees. These measures alone would earn another three points on the RTI Rating, pushing Sri Lanka into sixth place globally. In setting rules on appeals, the Commission could also make it clear that these are free and do not require a lawyer.

Experience in other countries has shown that successful implementation of RTI laws is closely correlated with effective oversight bodies. It will, therefore, be important for the Commission to set clear rules regarding its own operations. Strong internal rules can be important to maintaining the independence and reputation of the Commission. For example, it would be good practice for the Commission to adopt rules on conflicts of interest for members, so as to avoid both actual conflicts and giving the public the impression that there is a conflict.
Sri Lanka has followed a practice which is common in South Asia, but relatively rare elsewhere in the world, namely of banning members of the Commission from “carrying on any business or pursuing any profession” (section 12(2)(a)(v)). Given the lack of clarity of this rule, despite its importance, it would be useful for the Commission to adopt rules elaborating on what it means.

The adoption of the RTI Act is an extremely exciting opportunity for Sri Lanka. In some countries, these laws have transformed the relationship between the government and the people, providing a platform for public participation, serving as a tool for official accountability and being used to expose and thereby combat corruption. In other countries, RTI laws have foundered against the immovable barriers of bureaucratic resistance, a lack of political will and disinterest on the part of the public.

What happens over the next few years will be crucial in determining the future of RTI in Sri Lanka. For the sake of democracy in the country, we can only hope this will be a transformative experience.

By Toby Mendel

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