RE: The Right to Information Bill ...

The Right to Information Bill and Politics in Ghana: Rejoinder (Part II)

In Part I of the article published 10 Sep 07, I provided some background and argued that the US Freedom of Information Act (FOIA) is the stronger model for Ghana, although Ghana would be better served by incorporating the UK “Commissioner” concept. Further, in Part I, I proposed that the Ghana Right to Information Bill ought to be re-titled Ghana Freedom of Information Bill (FOIB). In Part II, I provide some more background and discuss a few pertinent issues dealing with Exemptions, Intent to Publish, Data Held by Public Agencies, Who Can Request Under FOIB, Responsibility of Ministers, Time for Agency to Respond, Manner of Access to FOIB information, and Leveraging the Information Age to support the FOIB. Fundamentally, all should recognize that purpose of the FOIB is to promote the peoples’ freedom to access public information as part of the larger effort to make the Government of Ghana honest, accountable, and transparent.

EXEMPTIONS FROM FOIB

As argued previously, all Ghana public agencies, corporations, and institutions ought to be subjected to the FOIB. This includes the Chieftaincy institution, the Military, and the Police Service. Sadly, the draft FOIB reviewed has 14 “Exemptions” compared to just 9 “Exemptions” for the US. Ghana drafters should consider revising the draft to allow fewer “Exemptions”: (1) parliamentary committees --- but no public agency ought to be able to withhold records from Parliament or any Member of Parliament, (2) requests for information, including requests for information by government employees in their official capacity, (3) information produced by personnel and staff of the President whose sole function is to advise the President, (4) information related to decisional processes at the agency and ministerial level, (5) trade secrets and commercial or financial information obtained from a person as confidential and privileged, (6) personal and medical files and similar files the disclosure of which would constitute unwarranted invasion of personal privacy, (7) information contained in or related to examination, operation, or condition reports prepared by, on behalf of, of for an agency responsible for the regulation or supervision of financial institutions, (8) geological and geophysical information and data, including maps, concerning wells.

INTENT TO PUBLISH

This Jumbo jet-size loophole in the Ghana draft should be PLUGGED and DELETED. Drafters should provide some text along the following lines: Except to the extent that a FOIB requestor has actual and timely notice of the terms thereof, a requestor may not in any manner be required to resort to, or be adversely affected by, a matter intended to be published by a Ministry, Agency, public official or required to be published as a White Paper or by any other media, and not so published already.

DATA HELD BY GOVERNMENT AGENCIES

The FOIB should provide for a professional and legal process from the asking to the giving and/or denial. The process should not be confounded with private information at this stage. For this round, supporters may want to keep their eye on the ball and fight for access to “Records held by Public Agencies and Public Corporations in which the people of Ghana have AN interest.” Data held by government is the essence of any FOI laws, to begin with.

WHO CAN MAKE A FOIB REQUEST

Any individual, including non-citizens, corporations, associations, public interest groups, media, Regions, Districts, Local Governments, Chiefs, etc., ought to be able to make a FOIB request, stating such request as a FOIB request. No one should be compelled to say why, for any reason, including expedited requests.

RESPONSIBILITY OF SECTOR MINISTER

This is another Jumbo jet-size loophole!! Drafters should delete “Internal Review by Sector Minister from the Draft FOIB and rewrite Section 18 to incorporate FOIB Panel and Commissioner, to be funded as an independent agency, by the Common Fund. The revision should narrowly define Ministers’ responsibility to the FOIB manual, to include rules, procedures, descriptions of forms available, or the places at which forms may be obtained, and instructions as to the scope and content of all papers or reports. To avoid unnecessary appeals and potential litigations, ministries and agencies will make every effort to keep requestors apprised of the status of their requests and may not charge (1) educational institutions, (2) non-commercial interests, (3) scientific organizations, and (4) news media organizations, for FOIB requests.

LEVERAGING FOIB INTO THE INFORMATION AGE

The benefit of modern technology will allow the Ghana FOIB to join the information and electronic age right from the start. The FOIB should require establishment of Electronic FOIB System, (EFOIBS) to process and track all requests, from the asking to the giving/denial. Each agency should establish EFOIB Reading Rooms on the World Wide Web, and on Agency web sites. (All Ghana agency websites should be accessible directly from a sole Government of Ghana information portal). FOIB information shall include records, press releases, and of course the agency FOIB Manual, and updates as published in the Government White Paper registry.

As a recurrent requirement, on or before the first day of each Fiscal Year, each public agency should be required to submit to the FOIB Commissioner a report covering the proceeding fiscal year. Information will relate to (1) FOIB denials and reasons behind, (2) number of appeals, the results, reasons, with list of applicable statutes for the basis, (3) number of requests pending, median number of days those records have been pending, (4) number of records received, number of records processed, (5) median number of days taken by each agency/ministry to process requests for different types of requests, (6) total fees collected and sources, (7) number of full time staff devoted to FOIB and cost of staff to government, (8) make the report public information, including providing electronic on-line access.

TIME LIMIT

All agencies should be required to acknowledge receipt of requests within 7 days, and be required to provide the information within 20 days or deny the request, stating reasons, and telling requestor they have the option of appealing the denial before the Regional FOIB Commissioner, or any such body or panel.

OTHER WEAKNESSES OF THE GHANA DRAFT FOIB

Other weaknesses of the draft include (1) lack of an independent FOIB Commissioner (judge and panel), (2) neglect and lack of any role for CHRAJ and SFO, (3) absence of any reference to the Ghana Asset Declaration Law, and (4) absence of a realistic commitment to make sure access to government information will truly improve after passage of the FOIB. This is shameful and sad. It smacks of opportunists laying in wait to suppress the peoples’ freedom to access public information as part of the larger effort to make the government honest, accountable, and transparent.