Right to information: Transformation from a secretive society to transparency

By Cheranka Mendis

In an era of development and economic elevation, the right to information is considered a prime focus of society as it promotes transparent and accountable government.

During the last few decades, right to information has been recognised as an internationally protected human right, and societies across the world have been moving away from opaque and secretive administrative systems to open and transparent systems.

Jayampathy Wickramaratne

The right to information along with an open government is considered to be two of the most important topics in law today and democratic countries have now started laying colossal value on running an open and transparent government system.

The right has both intrinsic and instrumental value. Its intrinsic value is enhanced by the fact that citizens have a right to know. This is a fundamental stride towards a deeper, more meaningful democracy. Information also facilitates people to formulate progressive choices, and keep tabs on elected government officials who allege to act on the collective behalf of the people. Operating this law to its full capacity would therefore promote and facilitate effective transparency and accountability in a government.

What exactly is ‘right to information?’

President’s Counsel Dr. Jayampathy Wickramaratne explains it as follows: “Right to information is clearly linked with freedom of speech. Unless there are very good reasons for withholding such information everyone should be able to access information. It plays a key role in enabling citizens to see what’s going on within the government in exposing corruption and mismanagement.”

Speaking at a seminar on ‘citizen’s right to information’ organised by the Organisation of Professional Associations of Sri Lanka (OPA) Wickramaratne stated that if individuals are to exercise the democratic rights effectively, the right must play a crucial role in society. “Without access to government records, citizens cannot determine whether their leaders deserve re-election or whether they be thrown out of office because of fraud, mismanagement or any other reason,” he said. “Right to information is linked to the right to speech and expression; it is also an essential underpinning of democracy.”

One of the earliest right to information was found in Sweden in 1766 through which free access to official documents was allowed.

In the ‘universal declaration of human rights’ as put forward in the General assembly of the UN and which is today accepted as customary international law recognises the right to information. Article 19 states that everyone has the right to freedom of opinion and expression. “This right includes freedom of expression and freedom of information as part of the broader right of freedom of speech and expression. Everyone has the right to freedom of opinion and expression; it includes the right to hold opinions without interference and to seek, receive and impart ideas through any media regardless of frontiers.”

The exceptions

However, the right to information is not absolute. Along with the right comes a heavy baggage of exceptions, which are generally ignored or forgotten when the right is under discussion.

International Convent on Civil and Political Rights ICCPR article 19 which discuses right to hold opinion without interference broadly defines the restrictions, Wickramaratne said. “Article 19 states that everyone shall have the right to freedom of expression which shall include the freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers either orally, in writing or in print; in the form of art or through any other media of interest,” he quoted.

The exercise of the rights provided in paragraph 2 of the article carries special duties and responsibilities and may therefore be subjected to certain restrictions. This shall be as provided by law and are necessary to respect of right and reputation of others — (For example adoption in Sri Lanka: the law is that the adopted child’s birth certificate carries the names of the adoptive parents not biological parents. It doesn’t give a third party to go to the registrar and get the information).

Protection of national security, public order or of public health

“Views however have been expressed in Sri Lanka that if everyone has the right to information all the national security secrets have to be given. It’s not so. If you go through the right to information bill Jayasuriya presented you fill find a large number of restrictions,” he said.

The European Convention goes into more detail. It states that while the right promotes to receive and impart information and ideas without interference from public authority regardless of frontiers; the exercise of these rights since it carries with it duties and responsibilities merely subjected to formalities, conditions, restrictions cannot be in the interest but are necessary in a democratic society. “A government cannot just enforce restrictions, only those that are necessary in a democratic society. This gives a qualitative aspect.”

Governments can do so in the interest of national security, territorial integrity, public safety, prevention of disorder, crime, protection of health etc., reputation of others, or for prevention of disclosure of information received in confidence, and maintaining the impartiality of a politician.

Sri Lankan provision

Sri Lankan constitution does not expressly declare the freedom of information. The first time that Freedom of information was explicitly recognised as part of freedom of speech and expression was in the Galle face case — which was the popular Environmental Foundation vs. UDA — challenging the management of Galle Face by EAP.

Wickramaratne who was part of the committee helped draft the legislation which he claimed recognised for the first time the right to freedom of information. “Couple of years back the present government appointed a committee following a pledge by the President with Mahinda Chinthana of 2005 to draft a bill of new fundamental rights chapter which accords with Sri Lanka’s international obligations. The committee had the likes of Dr. Deepika Udagama, Dr. Jazima Ismail, Dr. Godfrey Goonethileke, DIG Thangavelu and several others. We were tasked to draft a new fundamental right chapter. We gave the report in December 2009. But haven’t heard about it thereafter.”

In the report suggestions and recommendations were made that freedom of information be recognised not merely as part of right of freedom of expression but as a standalone right because the trend today globally is to recognise the right to information as a standalone right and not just part of speech and expression.

According to the report, the act in short had the following elements:

Every person shall have the right of access, to any information held by the state including provisional

information held by any other persons and required for the exercise or protection of the person’s right.

Parliament shall by law make provision to give effect to these rights, other than such restrictions prescribed by law as necessary for a democratic society in the interest of national security, territorial integrity, safety, prevention of disorder and crime, or for the protection of health or morals or for the protection of reputation of others, privacy, for preventing the distribution of information received in confidence, or for maintaining authority and impartiality.

Jayasuriya’s bill

A lecturer at University of Colombo Dr. Mario Gomez stated that sadly governments of different parties have been reluctant to propose a law and push it through. In May this year Karu Jayasuriya presented a private members bill in parliament which was based largely on the law commission bill of 2005 which in turn drew from the media and civil society draft of 2003.

This draft contains a few fairly interesting features, Gomez noted. It tries to establish a right to access official information in the possession, custody or control of a public authority.

“Public authority is fairly broadly defined here. It includes ministries, government departments, higher educational institutions, institutions in which the government has a majority shareholding and any institution set up by a professional council and so on.

Official information is also fairly broadly defined to include memos, documents, letters, video material, electronic material etc.” he said. “First element of this law is that it gives every citizen a right to access official information.”

It establishes a right to receive reasons. This is a fairly key element often ignored, Gomez asserted. “It’s a key component in transparent governance that we are seeking. Everyone has an instinct to be told why.” This is quite a progress as in Sri Lanka it has been rather ambiguous on whether we have the right to receive reason. “I think we are moving towards establishing a right to receive reasons as part of the legal regime.

“The law seeks to vest an obligation on the part of public authorities to voluntarily disclose material at least every two years. Often referred to as proactive disclosure, the law establishes that every two years ministries to present a report summarising the performance of various entities under that ministry, its functioning, activities, salaries etc. In short, to proactively on its own, share material with the public.

“On the one hand you have a right to demand information from the state and on the other there is an obligation on the part of authorities to voluntarily share information. The Sri Lanka law says every two years, many other countries say once in 12 months,” he said.

Whenever a new project is initiated the government is bound to share details of that project. Here, projects are defined as those involving an expenditure of Rs.5 million or USD1 million. Whether its banana cultivation in one part of SL, building a tourist hotel, or whether it’s a road through a sanctuary, the government is bound by law to share info with the public. The law seeks to give priority to the provisions of that law. Where there is a conflict between freedom of information law and some other provision, freedom of information law seeks to give priority to that so that public servants who share the information cannot be subjected to a penalty punishment or sanction.

Public servants shall not be subjected to a sanction if they share information bona fide.

 Balancing act

While the law tries to give the citizens a general right to access official information; it at the same time provides a number of exceptions where information can be refused — national security, preserving territorial integrity of Sri Lanka, preserving trade secrets, not disclosing medical reports, personal privacy etc. “One of the challenges is how do you frame the right with these exceptions — how broadly do you cage the exceptions?” Gomez asked. The Law also contains what is referred to as public interest override, and sets up a Freedom of Information Commission. The Commission can override the exceptions if the information in need falls within the exceptions, if it believes the information should be in the public domain.

The authority is required within 14 days to decide whether it is willing to share the information or not but can take longer to provide the information. “If the info is refused under one of the subjects then it is possible to seek an appeal under the institution. If that too is refused Independent Freedom Information Commission can present the case and ask to be reconsidered.”

 Private actors and public

 An area law does not deal with and which is usually not considered in relation to private actors that perform publicly, he expressed. There are three categories of private actors, he said.

Public companies, sometimes their activities can have an impact on rights.

Example: A manufacturing facility that has to deal with toxic waste is bound to tell the public how they manage this waste. Public companies such as healthcare institutions etc., where there may be a monopoly situations – Private companies play a public function. Being a citizen, one is entitled to demand from public entities that play a public function information on how they conduct some parts of their operation, regulators or professional bodies Ex: ICC, Bar Association of SL, SL Medical Council.

Even though they are private bodies they regulate their conduct of members, and if any of the members’ conduct is in question, citizens should be able to ask on how the member’s conduct is being inquired. “With the economy being more and more privatised, more and more institutions being outsourced there is a need to look not at the nature of the institution but rather the nature of the function the institution is performing. If it is performing a public function then clearly information can be demanded from it,” he said.

 Issues containing the legislation

Gomez acknowledged, “It’s important to note that when we are using right to information law we are really talking about a change in terms of attitudes of the public servant. We are asking public servants to move from a culture of secrecy to a culture of transparency; and that is an enormous challenge.” This is due to the fact that in Sri Lanka public service, governance structures have grown up in this culture of secrecy and secrecy promotes suspicion, and transparency promotes trust and that’s the goal the country should aim at.“We can have a good law but the laws alone will not work, we need civil society organisations, professionals etc., to make use of the law and unless there is activism and dynamism on the part of civil society, we will not be able to move towards a culture of transparency,” Gomez said.