Course Title: Research Monograph
Course Code: LLM 6400
Mr. S. M. Masum Billah
Research Supervisor &
Department of Law
Jagannath University, Dhaka
Visiting Faculty, NUB
Md. Jahangir Alam
ID –LLM 090100343
Northern University, Bangladesh
Date of submission-31.12.2009
This topic is very important one in our legal sector. This work has been done on my own initiative and the instruction of my course teacher. The topic is much complicated and the topic. I was too much afraid before starting my works, I could not understand how can I start it but now Iam so happy that lastly I have completed my works. And for that I am so grateful to my course instructor Mr. S.M Masum Billah, for his help. In my work, may have wrong and many short comments and for this 1 beg pardon but that was not intentional. I have included many topics. Similarly various relevant topics for detail discussion. The scheme has also been improved and has been made much methodical, scientific and systematic. I would like to thank very specially Mr. S.M Masum Billah for his strong support and special help. Hope and trust that this work may help the other students, like me.
December 31, 2009
Mr. S.M Masum Billah
Department Of Law
Sub: Letter of Transmittal.
It is a pleasure for me to submit the research on Right to Information. “Standard and Practice”. While doing this research; I have tried my best to make the project paper to the required standard. I hope that this paper will fulfill your expectation and make you happy. I, therefore, hope that you would be kind enough to go through this paper for evaluation.
1 am always available for any clarification of any part of this paper at your convenience.
Md. Jahangir Alam
ID: LLM 090100343
I, Md. Jahangir Alam, ID: LLM 090100343, (LLM Programme 1 year) Student of Northern University, Bangladesh. Declaring that this research paper on Right to Information ”Standard and Practice” in Bangladesh. The stated topic has only been prepared for the partial fulfillment of the course Final Dissertation Course. This Course Code: Law 6400 and Credit hoiirs-03.
I also confirm that, the Paper is only prepared to my academic requirement not for my other purpose.
Md. Jahangir Alam
ID: LLM 090100343
Northern University, Bangladesh
Approval of the Research
Right to Information “Standard and Practice”
Research paper on Right to Information”Standard and Practice” is prepared by Md. Jahangir Alam, bearing student ID: LLM 090100343 of Northern University Bangladesh, is accepted in terms of quantity.
|Mr.S.M Masum Billah
Department Of Law
|Md. Jahangir Alam,
Student (Masters of Law)
ID : LLM 090100343
First of all, I would like to express my deep gratitude to the almighty Allah for successfully preparing this Research Paper. Then I am obliged to Northern University, Bangladesh for giving me such an opportunity to express my real practical working experience in front of them. I am also thankful to my supervisor Mr. S. M. Masum Billah for his kind guidelines and evaluation.
It is a great pleasure for me to submit the research on Right to Information “Standard and Practice”. This was so important for aware someone about right and justice. While doing this paper, I tried my level best to make this Research paper to the required standard. I hope that this paper will fulfill your expectation. I, therefore, hope that you would be kind enough to go through this paper for evaluation.
I thank the Almighty Allah for giving ability to complete this Research. The contribution and encouragement of my teacher Advocate Abdul Mannan Bhuiyan who assisted me for this research are gratefully acknowledged. I would like to thank very especially to him, for his strong support and special help.
The Right to Information Act is enacted on 1st July. 2009 in Bangladesh. The whole world celebrates 28th September as right to Information Day. Right to Information comprises a right to the following kinds of information, in a timely manner and in a language that the person understands: Legal information and assistance. This might include information on criminal prosecutions but also civil remedies, negotiation and/or mediation options Information about legal proceedings involving the person, including explaining the person's role hi those proceedings, the expected duration of the case and other important timings. The person should also be apprised of the progress of the case and the final decision. The right to access diplomatic and consular representatives other important information. In the context of trafficking, this may be for example the whereabouts of the perpetrator, possibilities for temporary or permanent residence, or other rights such as to social security assistance. Rights are also absolute and qualified. A man has an absolute right to recover property which belongs to Mm; an agent has a qualified right to recover such property, when it had been entrusted to his care, and which has been unlawfully taken out of his possession. Information is power, and the spirit of democracy and the right to information is considered as a fundamental human right everywhere in the world.
But like many other fundamental human rights, such as right to food, shelter, clothes, Medicare and education, the right to information is also faced with an identical fate of non-realization in Bangladesh, Freedom of information and in particular, the right of access to information held by public bodies, has attracted a substantial amount of attention recently. Right to information has governance as well as a rights perspective.
Correct information at the right time reduces the chance of misuse of resources and lessens corruption. It also helps governance system function better, makes service providers accountable for their actions, creates participatory and transparent environment for people to contribute in policy formulation and establishing role of law. The right to information holds within it the right to seek information as well as the duty to give information, to create, store, organize and make it easily available, and to withhold it only when it is in the public interest to do so. The duty to enable access to information rests with government. Traditionally, the right was limited to getting information from government. However, the duty to release information is increasingly expanding to include multilateral organizations, international financial institutions, commercial and corporate bodies and civil society organizations, where then: activities affect the rights of citizens. Transparency and accountability are current buzzwords of governance being used unsparingly not only in Bangladesh, but by governments and international institutions all over the world. They have been a part of the debate on so called political reform in Bangladesh for a long time. Beginning with a people's movement in Bangladesh, there has been a sprouting of grass root level efforts supported by a coalition of individuals and groups ail over the country, demanding disclosure of concealed government information and legislation for the Peoples Right to Information, It as if the same issue has resurfaced, only this time being raised by a different set of people.
In the context of the struggle in Bangladesh, a clear analysis of these efforts becomes imperative. There is a need to examine the similarity and difference in the demands that have emerged from the grass root struggle and the suggestions for change that have been made by policy makers and academics considering and debating political reform. It is necessary to point out how critical the difference in approach is, to the perspective of the Right to Information movement and of the aspirations of the poor. By resting the sovereign rights with the citizen and making citizens action the focus, these grassroots level demands for the Right to Information (commonly labeled Transparency) and peoples audit (labeled accountability) radically alter the potency, use, and perspective of what seems to be a commonly understood term. Right to Information is contained within the Constitutional right to the freedom of expression because it is rooted in action, facets of the issue have been thrown up which have altered its discourse in Bangladesh. The concept of privacy and personal information protection in the information society is briefly explained. After that, confused situations in Bangladesh caused by the enforcement of Act on the Protection of Personal Information are described followed by the analysis of the Bangladeshi socio-cultural circumstances surrounding privacy.
|Sl. No||Topic||Page No|
|Right to Information: Fundamental Concepts|
1.2 Scope of the Objectives of the study
|1.3 Concept of Right||6|
|1.4 Concept of Information||9|
|1.5 Right to Information (RTI)||10|
|1.6 Importance of Right to Information||13|
INTERNATIONAL ORGANIZATION ON RIGHT TO INFORMATION.
2.1 United Nation Development Program
2.2 The right to access.
2.4 Duty to Publish.
2.7 Overview of the policy
2.8 Condition of Information Availability
Right Information: Bangladesh Perspectives
|3.1 Political Ideals and Information Rights||29|
|3.2 Freedom of Information||30|
|3.3 Statement of Purpose||32|
Characteristics of a Model RTI Act.
Exemptions from Right Information.
5.1 The Form Of Exemption.
5.2 Policy making.
|5.3 Status of Right Information in some neighboring and Commonwealth Countries||52|
|Procedure of Allegation and Appeal|
|6.1 Information Tribunal||54|
|6.2 Information Appellate Tribunal||54|
|6.3 Appeals to the Information Appellate Tribunal||55|
|6.4 Procedure of Information Appellate Tribunal||56|
|6.5 Finality of decision||56|
|RTI in different statutes, Acts and Laws|
|7.1 Bangladesh Constitution||57|
|7.2 Official Secrets Act, 1923||57|
|7.3 The Government Servants (Conduct) Rules||58|
|7.4 The Evidence Act 1872||59|
|7.5 The Rules of Business 1996||60|
|7.6 The Penal Code||60|
|7.7 The Code of Criminal, Procedure 1898||60|
|8.1 The Right to Information Act, 2009 in Bangladesh||61|
Right to Information: Fundamental Concept
The right to freedom of information, commonly understood as the right to access information held by public bodies, is now widely recognized as a fundamental human right. There is a massive global trend towards legal recognition of this right as countries around the world that aspire to democracy either have adopted, or are in the process of preparing, freedom of information laws. This represents an enormous change from even ten years ago, when less than one-half of the freedom of information laws now in place had been adopted. There are a number of good reasons for growing acceptance of freedom of information as a human right. If anything, it is surprising that it has taken so long for such an important underpinning of democracy to gain widespread recognition as a right. Public bodies hold information not for themselves but as custodians of the public good. As such, this information must be accessible to members of the public in the absence of an overriding public interest in secrecy. In this respect, freedom of information laws reflect the fundamental premise that government into serve the people. There are, however, a number of more utilitarian goals underlying widespread recognition of the right to information. The international human rights NGO, Article 19, Global Campaign for Free Expression, has described information as, "the oxygen of democracy".Information inessential to democracy at number of levels. Fundamentally, democracy is about the ability of individuals to participate effectively in decision making that affects them. Democratic societies have a wide range of participatory mechanisms, ranging from regular elections to citizen oversight bodies, for example of the public educational and/or health services, to mechanisms for commenting on draft policies or laws. Effective participation at all of these levels depends, in fairly obvious ways, on information. Voting is not simply a technical function. For elections to fulfill their proper function – described under international laws ensuing that "[t]he will of the people shall be the basis of the authority of government" – the electorate must have access to information. The same is true of participation at all levels. It is not possible, for example, to provide useful input to a policy process without access to the policy itself, as well as the reasons it is being proposed. Democracy is also about accountability and good governance. The public have a right to scrutinize the actions of their leaders and to engage in full and open debate about those actions. They must be able to assess the performance of the government and this depends on access to information about the state of the economy, social systems and other matters of public concern. One of the most effective way of addressing poor governance, particularly over time, is through open, informed debate. Freedom of information is also a key tool in combating corruption and wrongdoing in government. Investigative journalists and watchdog NGOs can use the right to access information to expose wrongdoing and help root it out. As U.S. Supreme Court Justice Louis Brandeis famously noted: "A little sunlight is the best disinfectant."Commentators often focus on the more political aspects of freedom of information but it also serves a number of other important social goals. The right to access one's personal information, for example, is part of basic human dignity but it can also be central to effective personal decision-making. Access to medical records, for example, often denied in the absence of a legal right, can help individuals make decisions about treatment, financial planning and so on. Finally, an aspect of freedom of information that is often neglected is the use of this right to facilitate effective business practices. Commercial users are, in many countries, one of the most significant user groups. Public bodies hold a vast amount of information of all kinds, much of which relates to economic matters and which can be very useful for businesses. This is an important benefit of freedom of information legislation, and helps answer the concerns of some governments about the cost of implementing such legislation. These rationales for freedom of information legislation apply equally, if not with more force, to developing countries as to more developed countries. Democracy is not the preserve of a few select countries but aright of citizens everywhere. Every country in the world needs adequate checks and balances on the exercise of public power, including through freedom of information and the public oversight this enables. Freedom of information can be particularly effective in exposing corruption where there are few other safeguards, as grassroots experience in India with this right has amply demonstrated.Freedom of information is most commonly understood primarily as aright to access information held by public bodies upon request. This is central aspect of the right, but it clearly goes beyond that. One further element, addressed in most freedom of information laws, is the obligation on public bodies to publish, even in the absence of a request, key information, for example about how they operate, their policies, opportunities for public participation in their work and how to make a request for information. One further aspect of this right is starting to emerge. Unlike the other two aspects of the right, which relate to information already held by public bodies, this third aspect posits a positive obligation on States tonsure that certain key categories of information are available. International NGOs like Article 19, for example, have argued that States are under a substantive positive obligation to ensure that citizens have access to information about human rights violations.This is of particular importance in the aftermath of a period of serious human rights violations, as part of a renewed commitment to democracy and to respect rights. In such cases, it may not be enough simply to provide access to information already held by public bodies; it may be necessary to go further and collect and compile new information to ascertain the truth about the past abuses. The importance attached to this is reflected in the truth commissions appointed in a number of countries. It is essential that information about past abuses is readily available in an accessible form if the nation as a whole is to be able to deal with those abuses and move on. Over the past 10 years, there has been a dramatic growth in formal recognition of the right to freedom of information. Numerous international bodies, including the UN and all three regional systems forth protection of human rights, have recognized the fundamental importance of this right, along with the need for legislation to guarantee it in practice. Many newly democratic countries have adopted new constitutions which explicitly recognize this right. In other countries, superior courts have interpreted long-standing constitutional guarantees of freedom of expression as embracing the right to freedom of information. Perhaps most significant, however, is the veritable wave of freedom of information laws sweeping the globe. Such laws have been adopted by countries in every region of the world over the past 10 years, with the possible exception of the Middle East, and in many more countries, law sere in an advanced stage of preparation.7Notwithstanding their natural tendency towards secrecy, governments are realizing that they can no longer resist the imperative to pass legislation guaranteeing a right to access the information they hold. The laws which have been adopted certainly vary considerably interims of the extent to which they guarantee the right of access in practice. Some, like the Zimbabwean Access to Information and Protection of Privacy Act, serve more as fronts for repressive media legislation than to ensure access to public information. Most, however, are inexorably forcing the governments to which they apply to be more open. This study begins with an overview of the international basis for the right to freedom of information. This overview considers both authoritative international statements, as well as relevant national developments, as evidence of global acceptance of this right. The next section describes the best practice standards to which freedom of information legislation should aspire. These sections are followed by analyses of the laws of 10 different countries from all regions of the world, namely Bulgaria, India, Japan, Mexico, Pakistan, South Africa, Sweden, Thailand, the United Kingdom and the United States. The choice of countries was based on a number of factors including geographic distribution, progressive and/or longstanding legislation and the familiarity of the author with the country/legislation. Each country section is organized under the same set of headings. A brief introduction is followed by headings on the right of access – subdivided into definitions and process – the duty to publish, exception, appeals and promotional measures.
1.2 Scope and Objectives of the study:
The purpose of this paper is to reconsider the concept of the right to information privacy and to propose, from Bangladeshi perspective, a revised conception of this right that is suitable for the modern information society.
Right to Information has an important economic dimension, as it embraces not only political freedom or others but also the freedom to lead a life with dignity, unfettered by domination and discrimination.
Our aim is to provide authentic and analytical help regarding Right to Information in Bangladesh to Officers, Lawyers, Citizens, RTI Activist, Associations, & NGO's. Our strength is in bringing them all at one platform. A right to be informed about legal and immigration options and services available, the rights, and every decision or process that will affect, or other information that would consider relevant. This right must be respected not only to provide the person with the tools to make crucial decisions about future, but also to respect inherent dignity as an individual with control over life.
1.3 Concept of Right
This word is used in various senses:
1. Sometimes it signifies a law, as when we say that natural right requires us to keep our promises, or that it commands restitution, or that it forbids murder. In our language it is seldom used in this sense.
2. It sometimes means that quality in our actions by which they are denominated just ones. This is usually denominated rectitude.
3. It is that quality in a person by which he can do certain actions, or possess certain things which belong to him by virtue of some title. In this sense, we use it when we say that a man has a right to his estate or a right to defend himself.
In this latter sense alone, will this word be here considered Right is the correlative of duty, for, wherever one has a right due to him, some other must owe him a duty.
Rights are perfect and imperfect. When the things which we have a right to possess or the actions we have a right to do, are or may be fixed and determinate, the right is a perfect one; but when the thing or the actions are vague and indeterminate, the right is an imperfect one. If a man demands his property, which is withheld from him, the right that supports his demand is a perfect one; because the thing demanded is, or may be fixed and determinate.
But if a poor man asks relief from those from whom he has reason to expect it, the right, which supports his petition, is an imperfect one; because the relief which he expects is a vague indeterminate, thing.
Rights are also absolute and qualified. A man has an absolute right to recover property which belongs to him; an agent has a qualified right to recover such property, when it had been entrusted to his care, and which has been unlawfully taken out of his possession.
Rights might with propriety be also divided into natural and civil rights but as all the rights which man has received from nature have been modified and acquired anew from the civil law, it is more proper, when considering their object, to divide them into political and civil rights.
Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. These political rights are fixed by the constitution. Every citizen has the right of voting for public officers, and of being elected; these are the political rights which the humblest citizen possesses. Civil rights are those which have no relation to the establishment, support, or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like. It will be observed that every one, unless deprived of them by a sentence of civil death, is in the enjoyment of his civil rights, which is not the case with political rights; for an alien, for example, has no political, although in the foil enjoyment of his civil rights. These latter rights are divided into absolute and relative. The absolute rights of mankind may be reduced to three principal or primary articles: the right of personal security, which consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation; the right of personal liberty, which consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's inclination may direct, without any restraint, unless by due course of law; the right of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.
The relative rights are public or private: the first are those which subsist between the people and the government, as the right of protection on the part of the people, and the right of allegiance which is due by the people to the government; Ihe second are the reciprocal rights of husband and wife, parent and child, guardian and ward, master and servant.
Rights are also divided into legal and equitable. The former are those where the party has the legal title to a thing, and in that case, his remedy for an infringement of it, is by an action in a court of law. Although the person holding the legal title may have no actual interest, but hold only as trustee, the suit must be in his name, and not in general, in that of the cestui que trust. The latter, or equitable rights, are those which may be enforced in-a court of equity by the cestui que trust.
1.4 Concept of Information:
When using the Right to Information, it is necessary to understand what is 'information', "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; In simple terms it means that information is anything, which exists in any form with a public authority. The specific instances -records, documents, memos, emails, opinions, advices, reports, samples, models, are merely meant to illustrate the broad scope. Clearly file nothings are opinions, legal or other opinions obtained by Public authorities, or various reports received by them are all covered.- the Citizen can ask for it from the public authority. A few illustrative examples of how information may be obtained from institutions which are not Public authorities:
a) Information about a private bank can be obtained from the regulator -Reserve Bank of India,- if the law permits RBI to ask for it. Most information of any significance can be accessed.
b) Information about a private unaided school—from the education department.
c) Information about a Public Limited Company -from the Registrar of Companies or SEBI if the law empowers them to ask for it.
d) Information about a Cooperative Society-from the Registrar of Cooperative Societies.
e) Information about Trusts-from the Charities Commissioner.
1.5 Right to Information (RTI):
Information is power, and the spirit of democracy and the right to information is considered as a fundamental human right everywhere in the world. But like man other fundamental human rights, such right to food, shelter, clothes, Medic and education, the right to information also faced with an identical fate of non-realization in Bangladesh. An effective access to information has the potential to empower people to engage themselves: more meaningfully in the democratic process with a view to increasing transparency and accountability in the mechanism of governance and also reducing corruption.
The right to information is a constitutional right backed by the UN. Since the inception, BNNRC has been working on promotion of 9 principles of article 19 and use and potentials of RTI especially for the people of the remote areas and disadvantaged communities from 2000.
As a consequence of the long-term advocacy, an eight-member high-level committee headed by the Joint Secretary (Development) of the Information Ministry prepared the draft of the Right to Information (RTI) Ordinance 2008 in February 2008. The government put the draft on the website of the Information Ministry on March 4 2008 to collect public opinion on it till the Information Ministry submitted it to the cabinet on June 18 when it was approved in principle.
The draft had 27 articles on the objective of the ordinance, methods of information dissemination, how to seek or disclose information, exemptions from disclosure, formation of the information commission and punishment for not disclosing information. The Right to Information Ordinance, 2008 (RTI) came into effect with the government publishing a gazette notification Monday, on 20 October, 2008. However, people will have to wait 90 working days before they can use the law to get information. Within the 90 working days, an information commission will be formed for proper execution of the law and resolving public complaints regarding information. All preparation for releasing information under the law would be made within these 90 days. Even though at first six security and intelligence agencies were kept outside the purview of the ordinance, the gazette shows eight agencies. The agencies are National Security Intelligence, Directorate General of Forces Intelligence, Defense Intelligence Unit, Criminal Investigation Department of police, Special Security Force, intelligence cell of National Board of Revenue. The Special Branch of Police and intelligence unit of Rapid Action Battalion were added later. However, if the information is related to corruption and violation of human rights in these agencies, they will have to provide the information within 30 days.
The ordinance classifies information which may pose threat to the security, integrity and sovereignty of Bangladesh, obstruct law enforcement or incite any offence, endanger public security or impede due judicial process of a pending case, affect any criminal investigation, be prejudicial to the special rights of the Parliament, documents including summaries to be placed before the cabinet, or the council of advisers and information relating to discussions and decisions of such meetings. Within 60 days of promulgation of the ordinance all public, autonomous and statutory organizations and other private institutions run on government or foreign funding that have been brought under the new law will nominate an officer-in-charge for each of the unit to provide information. The information ministry will form a five-member selection committee soon to recommend candidates for the job of chief information commissioner and information commissioners to the president. It will recommend two candidates for each post. A judge of the Appellate Division of the Supreme Court, nominated by the chief justice, will head the selection committee that will also have the cabinet secretary as a member. The Speaker of the parliament would nominate a member each from the treasury bench and the opposition bench and the government would nominate a representative of eminent citizens for the selection committee. The information commission will consist of a chief information commissioner and two commissioners, at least one of them will be a woman. It will have its headquarters in Dhaka and in case of necessity would be able to establish offices anywhere in Bangladesh. The information commission will lay down guidelines to be followed by the authorities for publication and publicity of information and obtaining information. Every authority shall prepare and publicize a list of information which will be supplied free of cost. People will have to apply for information either in writing or through electronic media or through email and will have to pay fees for applying and for the information where applicable. However, the authorities may exempt an individual or a class of individuals or any other class from paying such fees.
The government in consultation with the information commission and by notification in official gazette may fix the fees and if needed the price of information. The officer-in-charge of providing information upon receiving a request will provide the information within 20 working days. However, if more than one unit or authority is involved, the information will be provided within 30 working days. If the officer-in-charge fails to provide the information, he will inform the applicant the causes in writing within 10 working days.If the sought information is linked to life and death, arrest or release from jail, the officer-in-charge will provide the preliminary information within 24 hours. The council of advisers on September 20 gave the final approval to the RTI ordinance. Against the backdrop of a longstanding demand, the caretaker government took the initiative to formulate the RTI as part of its institutional reforms. After coming to the power of Awami League Government the 'Parliamentary Standing Committee Bill (amended)* of Information Ministry is presented to the parliament and the mentioned Bill is got the shape of law on 29 March 2009.
1.6 Importance of Right to Information:
1. The Importance of Right to Information in Education: Putting a Human Face on a Fundamental Right
"If you have knowledge, let others light their candles by it." This is the philosophical underpinning of the freedom of information movement. Freedom of information and in particular, the right of access to information held by public bodies, has attracted a substantial amount of attention recently. In the past several years, many countries have taken steps to enact legislation giving effect to this right. By doing so, these countries join others around the world which have a long tradition to right to information, such as Sweden, the United States, Finland, the Netherlands, Australia and Canada. At this time the importance of freedom of information as a cornerstone right is more than an accepted notion; it is an obvious fact of life, which has been articulated as a fundamental right in numerous international conventions such as the Universal Declaration of Human rights and the International Covenant on Civil and Political Rights. However, the right to access to information has not been realized by the majority of India's people. Rather than protecting citizens right to information, India and other developing countries have created a "poverty of information" through sanctioning an official culture of secrecy.Freedom of information should be analyzed on several different levels. For certain segments of society, for example, the middle and upper classes, access to information often times simply makes life a bit more secure or stable. However, for those who are poor and struggling for literacy, right to information becomes crucial. Without access to information, the most vulnerable become even more disenfranchised. In the past, right to information has often been an academic exercise in transparency couched in esoteric terms detached from the realities of grassroots organizations and movements. However, we know from the struggles of these groups that the right to information, if guaranteed and implemented in the right spirit, can empower communities to take charge of their lives by participating in decision-making and by challenging corrupt and arbitrary actions at all levels. This empowerment is particularly significant in developing countries, such as India, which is a nation afflicted with low literacy rates, high birth and infant mortality rates, social and economic tensions, class, caste and communal conflicts, gender discrimination and a relatively poor record of civil rights. A walk around any slum or disadvantaged community reveals a multitude of concrete examples where the people's right to information is not simply an academic exercise, but rather a matter of survival, security, or sustenance of lire. Education underpins a person's ability to access important information. When there is no freedom of information regarding educational opportunities, the entire project of obtaining information is jeopardized. For example, while attendance at a college or university often guarantees a continuance of the status quo for those in the middle and upper classes, for a disabled person from a lower class, admission to university often means an escape from poverty.
2. A recent news story (Times News Network : June 6, 2002) highlights how a lack of information can bar the economically disadvantaged from opportunities already present. Though poor and visually impaired, two sisters managed to finish their secondary school in good standing, and had aspirations to attend university and to then become teachers. However, neither they nor their family had any knowledge that due to their physical impairments, they were eligible to apply for university admission under a "disabled quota" mat reserves three percent of seats in all institutes. Because of this lack of information, the sisters were unable to pursue their dreams. University seats often go empty because of the public's lack of awareness of quotas. For example, at Delhi University, out of the total of 44,000 available seats, 1,320 seats are reserved for the physically disadvantaged. However, in 2001, only 250 such disabled students gained admission under this quota. There are approximately 200,000 disabled school aged children. The fact that not even one percent of Delhi's disabled students take up university seats for which they are eligible shows the tragic extent to which this information is not made available. Does one draw the conclusion that none of these students would be sufficiently qualified to pursue university degrees or are these students simply unaware of the disabled seats for which they are eligible? The latter explanation seems the more plausible. The loss of educational opportunities because of people's inability to gain access to relevant information extends beyond the loss of university seats. Children's education at the most basic level is neglected due to hi accessible information. While more government funds still need to be allocated to education, the discovery that allocated funds are going unspent shows that the right to information must be a concurrent primary goal. Outlook magazine's recent article on India's collective neglect of her children, "When the State's a Poor Parent": March 18, 2002, presents distressing statistics compiled by the Delhi based NGO, HAQ: Centre for Child Rights. HAQ's review often years of
Union budgets indicates that despite the severity of overwhelming needs and suffering of children in this country, substantial funds sit unused or underutilized in the central government. Outlook reported that for every Rs. 100 spent by in the 1990's, only 60 paisa had gone to children's education, 40 on their development and 20 on their health. These niggardly sums in spite of the fact that 75 million children in India are chronically undernourished. India's largest funded childcare plan, ICDS, reaches only 38%[23 million out of 60 million] of children younger than six years living below the poverty level, at a mere 19 paisa per child per day while the actual cost of reasonable childcare is a minimum of Rs 15 per day or Rs 200 core a year. While this fund typically leaves 11.6% of its budget unspent, such waste is exemplary compared to the average 90% unspent by other funds.
The budget indicates that only 1.3 percent of the Union Budge in the last decade was spent on children. Approximately half of all children are out of school, usually involved in child labor schemes. The latest budget has 18 elementary education schemes, with outlays varying from Rs 1.8 core to Rs. 1,330 core. However, it does not matter how much money is earmarked for education if the money is never used. In one shocking example, three successive budgets allotted Rs.420 core to the 1998 vintage Free Education for Girls scheme, while no actual money was spent.
3. In addition to under-spending nationally allocated funds for education, the government also fails to spend the money it continues to request annually from foreign donors. Over one-half of the child health budget and more than one-fourth of all expenditures for children comes from foreign loans on which the taxpayers must pay interest, despite the fact that the funds may go unused. Dr. Biswajit Dhar, who acted as an economic advisor to HAQ, comments, "This means that the citizens of India, the taxpayers, are actually paying interest on an amount of funds that is simply accumulating, virtually collecting dust. Under these circumstances, why take the aid at all?" The World Bank is acutely aware of this problem and is attempting to increase India's poor aid utilization rate. The litany of India's failures in protecting and caring for her children, despite being a signatory state to numerous conventions and international declarations involving children's rights, is appalling and made more horrific when existing funds are not disbursed and utilized.. The executive secretary of HAQ, Enakshi Ganguly Thukra, summed up the situation this way. "The government is not only not committing the money, it's not even putting the systems in place. We just want it (the government) to put its money where its mouth is." Under-use or poor use of funds meant for children is a crime due not only to the helplessness of the target group, but also due to a lack of transparency as to how the government is using money it allocates. The total underutilization of desperately needed funds earmarked for children's programmes exists primarily because the public-parents, advocates, NGO's, and civil society, do not have sufficient access to information. HAQ researchers indicated in their report that they experienced great difficulty in accessing the information necessary to complete their study. They indicated that data was not always available from all sectors for the ten years and that the basic document for data on budgets, Detailed Demands for Grants of all the Ministries/Departments, was also not always available for all the years. Even when available, data for the same sectors for the same years in two documents did not always tally, demonstrating that the governments own records are inconsistent. Additionally, there was no one central source of information on programmes/schemes related to children because children's issues are dealt with by several ministries and departments. For example, in addition to the Department of Women and Child Development and the Department of Education, Ministry of Human Resource Development, that have child specific programmes, the Ministry of Labour looks into child labour problems and the Ministry of Social Justice and Empowerment addresses the needs of children belonging to the Scheduled Castes/Scheduled Tribes/Other Backward Classes as well as children with disabilities, children of prostitutes and the juvenile offenders. Other children's programmes and schemes are covered in other ministries, i.e., the Ministry of CHRI staff interviewed researchers at HAQ to discuss their difficulties in accessing records, budgets, and other relevant information necessary for the completion of their study. HAQ worked on this report for approximately two years. As HAQ noted in its preface, "The biggest handicap that we faced in undertaking this study was the availability of information and data. It would have continued to be so, had it not been for the assistance we received from Mr. Vinay Bhatnagar." CHR1 staff was told that HAQ's researchers had effectively run into insurmountable obstacles following standard procedures until Mr.Bhatnagar, a member of parliament, intervened on their behalf
4. Health and Family Welfare. The lack of coordination of all these programmes suggests that the funds that actually do get spent are not being used most efficiently or effectively. Given the difficulty of trained researchers in obtaining such important information, how will average citizens determine how much money the Central and State governments receive for children's education, health and general welfare and how much of this money is tied to specific programmes that do not have implementation systems in place? How can we learn when funds are not being used properly, or are simply, due to bureaucratic inertia, not being utilized at all? An article published in the Times of India on August 22, 2002, entitled "Sarva Shiksha? You must be joking", brings to light a similar scenario, whereby apart from the Rs 1,300 cores to be distributed for the working of the Sarva Shiksha Abhiyan (a central government funded programmed for universal education that completes its first year in September) an additional Rs 10,000 cores was promised by the parliament and the 10 The Plan to be spent annually. However, according to NAFRE (the National Alliance for Fundamental Right to Education) conveyor Sanjiv Kaura, the actual dispersal has been only a meager 10% of the promised funds. Again, there is a huge gulf between allocations and disbursals. Funds for education sit and collect dust on the shelves of the Treasury while the quality of education deteriorates. The lesson to be learned from these illustrations is that if more people had access to information, which begins with learning the correct questions to ask to get the correct information, communities, parents, and others would become more engaged in the process of understanding, monitoring, and then evaluating potentially available public funds for children which are being under utilized. Public pressure would force government to enact effective programmes to utilize these funds; public eyes would continue to monitor these programmes and their results.This is a classic example of the empowerment of information. Knowledge is power, but only if it is shared. We have witnessed this phenomena time and again during the evolution of the freedom to information movement at the grassroots level. With continued pressure on legislatures to enact right to information legislation, public awareness of these provisions, and a proactive approach on the part of governmental bodies to provide information to the public, government becomes more transparent, and in turn, more responsive.Increased awareness of right to information is a viable tool for those seeking to maximize educational and other opportunities provided by government.
INTERNATIONAL ORGANIZATION ON RIGHT TO INFORMATION
2.1 The United Nation Development Program:
The UNDP adopted its Public Information Disclosure Policy in1997, stating as its rationale for doing so that: The importance of information disclosure to the public as a prerequisite for sustainable human development (SHD) has been recognized in major United Nations intergovernmental statements, including the Rio Declaration on Environment and Development. … As a custodian of public funds, UNDP is directly accountable to its member Governments and indirectly accountable to their parliaments, their taxpayers, and the public in donor and programmed countries.The Policy is a progressive one, more so than the policies of other intergovernmental organizations. At the same time, it still fails in serious ways to meet the standards found many national laws. Unfortunately, the Policy appears to be used very little. A study in2001 noted: Even when, as seen above, IDP is in practice nonexistent, UNDP is perceived by Costs as a friendly and transparent institution.
2.3 The Right of Access
The Policy provides for access in two ways. First, it includes a list of documents that will be disclosed, either when finalized or, in some casein draft form. This is similar to the approach adopted by other intergovernmental organizations. However, the UNDP Policy also provides for a general presumption in favor of disclosure, "in the absence of a compelling reason for confidentiality".The documents that will be available are listed in paragraphs 12-14dealing, respectively, with information about UNDP and its operations, documentation concerning programming, and documentation concerning country-specific activities. Different documents are available either in final form only or, in some cases and "where feasible", in draft form.
Given the limited applicability of the Policy, definitions do not take on quite the level of importance that they would in national law. Information is not defined, but it may be presumed that the Policy coverall information held by the UNDP. The Policy notes that it is applicable to all documents created after its adoption, and also to documents created before that date, "unless there are compelling reasons to the contrary".
This appears to distinguish between the two categories of documents, although the same test for confidentiality is applicable to all documents.The Policy does not really define its scope in terms of bodies covered, again given that it is primarily applicable simply to the UNDP. However, paragraph 9 notes that the Policy also applies to funds and programmed administered by the UNDP, including "United Nations Development Fund for Women (UNIFEM), the United Nations Capital Development Fund (UNCDF), and the United Nations Volunteers (UNV)."
Documents will be made available through the Internet and in hardcopy at UNDP headquarters and country and liaison officesCountry specific information will be available from the relevant country office and documents not available through that office will be sent by post. To facilitate access, Public Affairs Officers will be designated for these offices with a responsibility for ensuring that requests are "adequately addressed". Some information, particularly documents sent to the Executive Board for formal approval, will be available in all six UN Freedom of Information: A Comparative Legal Survey working languages while other documents will only be available in the language in which they were prepared. The Policy notes that the UNDP is currently studying best implementation practices, including the idea of "cost-recovery". A report on the Policy in June 2001 notes, however, that the study was never finalized or implemented. To keep costs low, a commitment is made to make extensive use of the Internet. Requesters must be provided withal response within 30 business days and, in case of refusal, reasons shall provided.
2.5 Duty to Publish
The Policy does not explicitly provide for an obligation to publish but the UNDP does in practice actively publish a variety of information. Furthermore, the Policy makes a commitment to actively use the Internet to facilitate low-cost access, which, almost by definition, implies active publication.
The UNDP Policy, as noted above, both lists documents which are subject to disclosure and provides for a general presumption in favor of disclosure for other documents, subject to a set of exceptions.Paragraph 2 of the Policy notes the special relationship between the UNDP and programmed governments, based on the Standard Basic. Assistance Agreements (SBAAs) that are in force. These documents specifically state that the parties shall consult each other regarding publication of project-related information, and that,"information relating to any investment-oriented project may not be released by the UNDP to potential investors, except with the written consent of the government".
Decisions to treat documents as confidential should, according to the Policy, be made by governments and the UNDP at the time the documents designed. Paragraph 15 of the Policy sets out the recognized exceptions. However, the Policy also recognizes the possibility of information being kept confidential even where it does not fall within the scope of the exceptions, as long as an explanation is provided. In this case, decision confidentiality shall be made by, "weighing the. Justification for confidentiality against the need for project and programmed quality and public involvement". The provisions of paragraph2, noted above, are no doubt relevant here. Paragraph 15 lists 5 sets of exceptions, only one of which is subject to a harm test. There is no public interest override. The first exception in paragraph 15 covers proprietary information, intellectual property in the form of trade secrets and information provided in confidence, the disclosure of which would cause financial or other harm. The second exception relates to internal notes and other documents, unless "these are specifically intended for public circulation". Legally privileged information, including disciplinary information, forms the subject of the including health or employment-related information, except to the staff member concerned. Finally, the fifth exception deals with information relating to procurement processes that involves "prequalification” information about a bidder, proposals or price quotations.
The Policy provides for the appointment of a Public Information and Documentation Oversight Panel. The Panel serves as an appeal body and requesters may lodge an appeal with the Panel, stating why they consider their request was inappropriately denied. The Panel is tasked with developing its own operating procedures. The Panel consists of five members, three UNDP professional staff and two "highly qualified individuals from the not-for-profit sector, one from a programmed country and another from a donor country, appointed in their personal capacity," all appointed by the Administrator. The national laws but, at the same time, it is encouraging that an intergovernmental organization has accepted the principle that its decisions should be subject to review. A long list of qualifications for both the staff members and the not for-representatives is set out in the Policy, including such things as a good understanding of the UNDPs work, ability to balance transparency and confidentiality and access to mechanisms for disseminating information. The Panel appoints its own chair.115International Organizations According to the Policy, the Panel shall normally meet twice a year at UNDP headquarters but, where a case is particularly urgent or more than three appeals are pending, the Chair may call an emergency meeting ,either in person or by teleconference. Minutes of the meeting shall be made available on the Internet.428 In practice however, a study on the Policy in 2001 notes that the Panel, while appointed, had never been convened. Promotional Measures The Policy provides for a review two years after its adoption.
The Panel has a number of promotional roles, in addition to its function as an appeals body. It is tasked with reviewing the UNDP's performance in implementing the policy, making recommendations for reform, and participating in the review process. Freedom of Information: A Comparative Legal Survey
2.8 Overview of the Policy
The World Bank Policy is fundamentally different from the other laws and policies described in this book. Like the other laws and policies, it contains a general presumption in favor of disclosure, stating:"[T]here is a presumption in favor of disclosure, subject to the provisions of this statement." Indeed, the Policy sets out four main rationales for openness relating to the different functions of the Bank, as follows: to promote effective operations as a development organization, to promote accountability as an organization owned by its member countries, to help attract investment as a borrower and to help staff carryout their responsibilities as an employer. However, the substance of the Policy is a list of documents that maybe disclosed once certain conditions are met. Information that is not specifically listed in the Policy is not subject to disclosure. In practice, then, the Policy actually creates a presumption against disclosure, subject to a number of listed exceptions, namely documents that will be disclosed. The prima facie conditions for release vary with the document in question. In some cases, the Policy simply provides that a document shall be available. In other cases, the document shall be available once it reaches117a certain point, for example once it has been formally adopted by the Executive Directors. In many cases, availability depends on the consent of the affected country. Other conditions apply to the disclosure of other types of documents. These conditions are described in more detail below. A regime of exceptions applies to further limit document availability, even when the document satisfies the prima facie conditions for release. The Policy applies to the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA), although in some cases different standards apply to document availability for these two different bodies. The IDA is the wing of the Bank that lends to the poorest countries, with the stated goal of reducing poverty. It provides 'credits', which are loans with zero interest, repayment grace period of 10 years and maturities of 35-40 years. The IBRD states its goal as promoting sustainable development by lending to middle-income and creditworthy poorer countries. Although it does not” maximize profit", it "has earned a net income each year since 1948." There is no appeal from a refusal of the Bank to disclose information and the Policy fails to set out any process guarantees, even in relation to the time limit within which requests must be decided.
2.9 Conditions on Information Availability.
The World Bank Policy places a number of prima facie conditions on information availability. This section outlines the main types of conditions. Notwithstanding these conditions, disclosure of a document may still be refused if the document in question falls within the scope fan exception. In general, information relating to safeguards for certain vulnerable or affected groups or interests – such as in digamous peoples, those likely to be dislocated by a project or the environment – is more likely to be available than other types of documents. Documents which are Generally Available number of documents are presumptively available, subject to the regime of exceptions, under the Policy. Examples of these document include Project Information Documents, providing brief factual summary of the main elements of an evolving project118 Freedom of Information: A Comparative Legal Survey Monthly Operational Summary, providing information on the status of each lending operation under preparation for financing Integrated Safeguards Data Sheet, identifying key issues under the Bank's 'safeguard policies' (for example relating to the environment, indigenous peoples and dam safety) in relation to investment projects and sector adjustment operations under reparation for financing Country Policy and Institutional Assessments for countries eligible for IDA financing (the poorest countries) and a range of internal documents, such as the Articles of Agreement and By-Laws, organizational charts and basic employment data.
Right to information: Bangladesh Perspectives
3.1 Political Ideals and Information Rights:
Along with Nigeria, it seems Bangladesh is making strides towards the implementation of a right of citizens to request and access government information. This from The New Nation:
The Council of Advisers has approved the Right to Information Ordinance-2008 to pave the way for ensuring the rights of people in getting information about the organizations run by public money.
The approval came yesterday at a meeting of the council held at the Chief Adviser's Office (CAO) with Chief Adviser Dr. Fakhruddin Ahmed in the chair. The council approved the proposal put forward by the Ministry of Information to increase transparency and accountability, reduce corruption and establish good governance in the government offices and other officer.
Here is the latest from Article 19:
It has been over three months since the Council of Advisers of the Caretaker Government of Bangladesh provisionally approved the Right to Information Ordinance 20081 Civil society organizations, coalitions of journalists and Right-to-Information campaigners have been eagerly waiting for the Information Ministry to give the draft to the cabinet for final approval and the completion of formalities.
"It is imperative that the authorities report to the stakeholders, and the public at large, on the current stage reached by the draft bill. The secrecy surrounding the drafting process and the final text is feeding unhealthy rumors and contradicts the spirit of a law meant to strengthen transparency and the free flow of information" said Dr. Agnes Callamard, Article, 19 Executive Director, on a recent programmed mission in Bangladesh.
A number of final drafts have been circulated informally, which were weaker than the first draft in terms of protecting the right to information. Article 19, and its partners call on the Information Ministry to submit to the Cabinet for approval a strong draft, which meets international principles, and acts as a true and meaningful vehicle for governmental transparency.
"In particular, we call on the government to ensure that the concerns raised by Article 19, Journalists, the Manusher Jonno-led RTI coalition and others are fully addressed. Media workers all over the world are very important stakeholders and users of freedom of information bills and it is essential that the final draft reflects then- views and concerns" said Tahmina Rahman, Article 19 Bangladesh Country Director.
3.2 Freedom of Information
Even though ministers and officials may recognize of importance of openness, the political and bureaucratic pressures to control information can be irresistible. That is why legislation to guarantee openness – a freedom of information (FOI) law – is essential. FOI laws usually have a common format. They provide the individual with a right of access to documents held by government and other public authorities. The applicant is not required to give reasons for, or justify his request, and the authority cannot withhold information from those it considers do not have a valid interest. Information can be withheld only where the law permits it. Exemptions to the right of access generally apply where disclosure would harm specific interests such as defense, security, international relations, law enforcement, privacy, commercial interests, or the decision-making process. Refusals can be challenged by appealing to (depending on the country) an existing ombudsman, a special information commissioner or commission, the courts, or a combination of these. FOI laws now exist in over 30 countries across the world. Most EU member states now have such legislation, the exceptions being Austria, Italy, Luxembourg and Germany where under existing legislation only those directly affected by, or with a legal interest in, a particular decision2 BSE Inquiry, Vol. 5 paragraph 4.641This list does not include those countries with general constitutional provisions on access to information, but no express statutory right. An internal survey of FOI legislation can be found on the Privacy Germany is proposing to introduce legislation and has published a draft bill are entitled to information. The limitations of this approach are illustrated by the fact that a journalist writing about on an issue, but not personally affected by it, would have no right to information.The mere existence of an FOI Act is no assurance that it will be effective. The law is not a tap, which once turned on generates a constant flow of information. It is a tool which shifts the balance of power between government and citizen towards the latter. But even under FOI governments may be generous with information that shows them in a favorable light, but reluctant to release material that would exposing shortcomings, assist their critics, undermine a key policy or generate unwelcome pressure, for example, for new expenditure. The legislation must be capable of extracting information in these circumstances. Exemptions must be narrowly drawn, and apply only where disclosure is shown to be harmful. Even information which may because harm should be disclosed where there is an overriding public interest in openness. The timescale for responding must be short. If charges for information are allowed, they must be modest. The appeal body must be capable of dealing with cases speedily and should not involve costs (e.g. of legal representation) which may prevent the ordinary citizen from challenging decisions. Finally, its role should not be limited to an impartial adjudication of disputes, but should include the promotion of greater openness.
3.3 A statement of purpose
In many laws this is done by a statement of objectives, which may affect the interpretation of the substantive provisions. To describe the purpose of an FOI law may seem like a statement of the obvious. But how obvious is the purpose of a law which may contain only a briefly stated right of access, followed by page after page of exemptions? Is the aim to allow the citizen to penetrate the
bureaucrat’s shell of secrecy – or to help the bureaucrat select the most plausible justification for denying access? Not all laws contain such statements. The UK government resisted it, maintaining that a purpose clause would ‘unbalance’ the law, by favoring openness over the competing claims of confidentiality and privacy. Other laws set out their purpose, for example. The most complete statement can be found in the recently revised Finnish law, which provides an insightful account of the role of FOI in a modern democracy:” to promote openness and good practice on information management in government, and to provide private individuals and corporations with an opportunity to monitor the exercise of public authority and the use of public resources, to freely form an opinion, to influence the exercise of public authority, and to protect their rights and interests.”11These purposes must be taken into account in the making of decisions under the Act.
One of the features of FOI is that citizens exercise the rights themselves, without depending on lawyers, journalists or elected representatives to obtain information for them. The user nevertheless faces real problems in using this legislation. Requesters must usually describe the documents they want, or the topic about which information is sought. This may be easy enough where what they want is their own personal files. But the ordinary citizen usually has no idea what kind of information can be found in other official files. Even relatively sophisticated users, such as political journalists or experienced NGOs, may have little insight into the materials generated during the policy-making or administrative process. Some FOI laws require public authorities to actively assist requesters, which may help to narrowthe gap. “to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies” Ireland“in the interests of effective, democratic governance” Netherlands“to ensure the free interchange of opinion and enlightenment of the public” – Sweden Others require authorities to publish guides to the classes of records they hold, though usually not the individual documents. Under the Canadian FOI law, a single publication describes.legislation requires agencies to publish details of previously disclosed records which are likely to besought by other applicants these must also be indexed and made available electronically.Although this may appear relatively ambitious (since it deals only with what has been released, not with undisclosed material) it provides an excellent introduction to the potential of the legislation. The Finnish law requires authorities to take the legislation into account when designing their information systems, so that these permit “effortless realization of access to the documents” within them. They are also required to provide publicly available indexes to their documents, and ensure that staff are adequately informed about the public’s rights of access to the documents they handle.Swedish public bodies must list on a public register each individual document which they receive, or have produced in final form, with a brief indication of its contents. This provides users with a remarkable degree of insight, into the precise documents that exist and which may be requested. There may be other user-friendly provisions. The Danish and Netherlands laws envisage that applications may be made verbally, unlike many which require the request to be in writing. The Belgian legislation gives applicants the right to have documents explained to them.Some laws, such as those in the Netherlands and UK, apply to all requests for information, regardless of whether the applicant mentions – or even knows about – the right of access. This contrasts with the position under some other laws, where an applicant who fails to cite the legislation has no rights under it, which must seriously disadvantage the less informed requester. Most countries provide access to recorded information only. But officials may not have the time to make exhaustive notes of everything they do – and sometimes may deliberately not records sensitive data. The Danish act requires officials to make notes of factual information which they have received by word of mouth.New Zealand’s law goes even further and provides a right of access to unrecorded as well as recorded information, recognizing that officials may be perfectly capable of explaining why a recent decision was taken, even though no formal record of the reasons has been kept.
Characteristics of a Model RTI Act
Freedom of information legislation should be guided by the principle of maximum is closure.
The principle of maximum disclosure encapsulates the basic rationale underlying freedom of information legislation and a version of this is explicitly stated as an objective in a number of national laws. An important aspect of this principle, also widely respected in national laws, is that the body seeking to deny access to information bears the onus of proving that it may legitimately be withheld, central to the idea of a presumption of openness. Another aspect of this principle is that the scope of the law should be broad. Everyone, not just citizens, should benefit from the right and an individual requesting access should not have to demonstrate any particular interest in that information. Information, or records, should be defined broadly to include all information held by the body in question, regardless of form, date of creation, who created it and whether or not it has been classified. This is also respected in most national laws, apart from classified information, which some national laws do admit as an Exception. More controversial is the scope of the obligation to disclose in terms of the bodies covered. No public bodies should be excluded from the ambit of the law; every legitimate secrecy interest can be addressed through an appropriate regime of exceptions. Many laws do not include the courts or legislative bodies, but the experience of those that do shows that this is perfectly possible. Given the rationale of freedom of information legislation, it is hard to justify excluding these bodies or, Indeed, any public bodies. Public corporations should also be covered and many argue that even private bodies which are substantially publicly funded or carry out public functions should be included within the ambit of the law. In South Africa, even private bodies are required to disclose certain information.
Public bodies should be under an obligation to publish key information
It is not enough for the law simply to require public bodies to accede to requests for information. Effective access for many people depends on these bodies actively publishing and disseminating key categories of information even in the absence of a request.The scope of this obligation depends to some extent on resource limitations, but the amount of information covered should increase over time, particularly as new technologies make it easier and cheaper to publish and disseminate information.
Principle3 PromotionOf Open Government
Public bodies must actively promote open government
In most countries, particularly those which have not yet or have just recently adopted freedom of information laws, there is a deep-rooted culture of secrecy within government, based on long-standing practices and attitudes. Ultimately, the success of a freedom of information law depends on changing this culture since it is virtually impossible to force openness, even with the most progressive legislation.The best approach to addressing this problem with vary from country to country but, at a minimum, there will be a need to train public officials. A number of other means of promoting openness within government have been tried in different countries, including, for example, providing incentives for good performers and exposing poor performers and ensuring legislative oversight through annual reports. The law should at least allocate responsibility for ensuring that this need is actively addressed, for example to an information commissioner, human rights commission or ombudsman. Another useful tool to tackle the culture of secrecy is to provide for criminal penalties for those who willfully obstruct access to information in any way, including by destroying records or inhibiting the work of the administrative oversight body. Prosecutions under provisions of this sort tend to be rare in those countries which do have them, but it sends a clear signal that obstruction will not be tolerated. The general public also needs to be made aware of their rights under the new legislation and how to exercise them. Public education campaigns are needed, including through the media. The broadcast media can play a particularly important role in countries where newspaper distribution is low or illiteracy widespread. Another useful tool, provided for in many laws, is the publication of a simple, accessible guide on how to lodge an information request. Again, it is best if the freedom of information law at least allocate responsibility for this to an oversight body. A third important aspect of promoting open government is promoting better record maintenance by public bodies.In many countries, one of the biggest obstacles to accessing information is the poor state in which records are kept. Officials often do not know what information they have or, even if they do know, cannot locate records they are looking for. A number of national laws address this in different ways, for example by giving a minister or the administrative oversight body a mandate to set and enforce standards for record maintenance. Good record maintenance is not only important for freedom of information. Handling information is one of the key functions of modern government and doing this well is crucial to effective public management.
Principle4.LimitedScope of Exceptions
Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest “tests
The regime of exceptions is one of the most difficult issues facing those drafting a freedom of information law and one of the most problematical parts of many existing laws. In many cases, otherwise very effective laws are largely undermined by an excessively broad or open regime of exceptions. On the other hand, it is obviously important that all legitimate secrecy interests are adequately catered to in the law, otherwise public bodies will legally be required to disclose information even though this may cause unwarranted harm. The presumption in favour of disclosure means that the onus should be on the public body seeking to deny access to certain information to show that it may legitimately be withheld. The ARTICLE 19 Principles set out a three-part test for exceptions as follows:
The three-part test
- The information must relate to a legitimate aim listed in the law;
- Disclosure must threaten to cause substantial harm to that aim; and
- The harm to the aim must be greater than the public interest in having the information.
Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available
Effective access to information requires both that the law stipulate clear processes for deciding upon requests by public bodies, as well as a system for independent review of their decisions. Processes for accessing information are complex and this normally occupies a large part of existing freedom of information laws. It is useful to require public bodies to appoint an individual as Information Officer, who bears overall responsibility for ensuring that the body meets its obligations under the law. Requests should normally be required to be in writing, although the law should also make provision for those who cannot met this requirement, for example by requiring the public body to assist them. Assistance should also be provided where a request is deficient, for example because it fails adequately to describe the information sought. Receipts should be provided as evidence of a request. The law should set out clear timelines for responding to requests, which should be reasonably short. In some cases, laws provide for unrealistically short timelines, which are sure to be breached frequently, undermining respect for the law. A Model Freedom of Information Law sets a timeline of 20 working days for responding to requests, subject to extension for another 20 days where strictly required. Where the requests for information needed to safeguard life or liberty, the response must be provided within 48 hours.The response to a request should take the form of a written notice stating any fee, the form in which access will be provided and, where access to all or part of the information is denied, reasons for that denial along with information about any right of appeal. Where the public body in question does not hold the information requested, it should be required to provide reasonable assistance to the requester to locate it. It is also desirable and practical for the law to allow requesters to specify what form of access they would like, for example inspection of the record, or a copy or transcript of it. It is essential that the law provide for various opportunities to appeal the processes noted above. Many national laws provide for an internal appeal to a higher authority within the same public body to which the request was made. This is a useful approach, which can help address mistakes and ensure internal consistency. It is, however, crucial that requesters have the right to appeal to an independent body to review decisions made by public authorities, which is reflected in most international standards.Otherwise, individuals cannot really be said to have a right to access information held by public bodies and much information, for example revealing corruption or incompetence, will never be disclosed. Review should not be limited to the question of disclosure of information, but should cover all aspects of the process including timelines, fees, form of access, and so on. Given the importance of rapid, cost-effective access to information, it is highly desirable that appeals should go first to an independent administrative body, and this is provided for in most of the more progressive national laws.It does not matter whether the law establishes a new independent body or allocates this task to an existing body, such as the human rights commission or an ombudsman. What is important is that the body be adequately protected against political interference. The procedures before this administrative appeals body should be designed to operate as quickly, fairly and cheaply as possible. It should have full powers to review any document held by a public body, in camera if necessary, as well as powers of investigation and to compel witnesses and the like. It should also have the power to issue binding decisions, enforceable through the courts where necessary. Finally, the law should provide for the right to appeal from the administrative body to the courts. Only the courts really have the authority to set standards of disclosure in controversial areas and to ensure the possibility of a full, well-reasoned approach to difficult disclosure issues. In some national laws, this right is limited to the requester, to avoid a situation where public bodies abuse this right to delay access or to deter all but the most determined and well-off requesters.
Individuals should not be deterred From making requests for information by excessive costs
Fees are a controversial issue in freedom of information laws. It is widely accepted that fees should not be so high as to deter requests,but practically every law does allow for some charges for access. There are a number of costs to public bodies which may theoretically be charged, including searching for documents, preparing them, reviewing whether or not they are covered by an exception and the actual cost of providing access, for example by duplication. Different laws take different approaches to fees. Some limit charges to the cost of duplication, perhaps along with a set application fee. Others group requests into different categories, charging less for public interest or personal requests. Still others allow requesters to occupy a certain amount of public time, for example 2 hours, for free and then start to charge after that. Regardless of the approach, it is desirable for fee structures and schedules to be set by some central authority, rather than be each public body separately, to ensure consistency and accessibility.
Meetings of Public bodies should be open to the public
The Article 19 Principles include the idea of open meeting, although in practice it is extremely rare for this to be dealt with in a freedom of information law. Some countries have separate laws on this. The reason it was included in the Principles is that the underlying rationale for freedom of information applies not only to information in documentary form, but also to meetings of public bodies.
Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed
Most countries have a range of secrecy laws on their books, many of which are not legitimate or which include illegitimate provisions which are inconsistent with the freedom of information law. If the principle of maximum disclosure is to be respected, indeed, if the culture of secrecy is to be addressed, the freedom of information law must take precedence over this laws.This should, where possible, be achieved by interpreting these laws in a manner which is consistent with the freedom of information law. However, where potential conflicts cannot be resolved through interpretation, the provisions of the freedom of information law should overrule those of conflicting secrecy laws. This is not as controversial as it sounds, at least in substance. A good freedom of information law will include a comprehensive set of exceptions, so there should be no need for this to be extended by secrecy laws. Some system of resolving conflicts is necessary to avoid placing civil servants in a position where they are prohibited from divulging information under a secrecy law and yet required to do so under the freedom of information law. Resolving this in favour of openness is clearly consistent with the basic presumption underlying freedom of information. Over time, a commitment should be made to review all laws which restrict the disclosure of information, with a view to bringing them into line with the freedom of information law.This is particularly important in legal systems where it is not possible to provide for the dominance of one law over others.
Principle 9.Protection for Whistleblowers
Individuals who Release information on wrongdoing whistleblowers must be protected
A freedom of information law should protect individuals against any legal, administrative or employment-related sanctions for releasing information on wrongdoing. Even the best system of exceptions will be unable to address every situation where disclosure is warranted and individuals seeking to disclose information in the public interest should not be required to undertake a complex balancing of different public interests. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. Wrongdoing in this context should include commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It should also include exposure of a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should Benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing. In some countries, this protection is set out in a separate law rather than being included in the freedom of information law. Some countries also condition this protection on a requirement that the individual in question first approach certain individuals or oversight bodies, so that problems can be addressed through official channels rather than through the media. Although this is legitimate in theory, in practice where there is a problem with corruption or other wrongdoing, official channels are often implicated and therefore ineffective. Also, many individuals may be reluctant to use official channels, where they can be identified and potentially targeted in subtle ways. As a result, any conditioning of this protection should ensure that the potential problems with official channels are taken fully into account. Protection from liability should also be provided to individuals who, reasonably and in good faith, disclose information in the exercise of any power or duty under freedom of information legislation. This effectively protects civil servants who have mistakenly, but in good faith, released information. This protection is important to change the culture of secrecy; civil servants should not have to fear sanctions for disclosing information or they will tend to err in favour of secrecy.
Exemptions from right to information
5.1 The form of exemptions
The key to any FOI law are the exemptions. There is considerable agreement across national laws about the areas covered by exemptions. But the degree of protection provided by the exemptions varies. At one extreme are exemptions which exclude entire classes of information from accessed together. Any information in these classes can be withheld even if the actual disclosure would not cause harm. Examples of class exemptions include documents relating to meetings of the Council or Ministers or Secretaries of State (Portugal), documents created by or for submission to a court or statutory inquiry (UK), documents relating to negotiations with other states(Finland), reports of financial regulatory bodies (USA) and material gathered for the purpose of public statistics or scientific research (Denmark).The Danish law used to also exempt all documents relating to EU proposals, but this was repealed in 1991.More commonly, exemptions are based on tests harm. The precise test may vary from country to country. For example, the exemptions for international relations in various English language laws refer to information whose disclosure would “affect adversely” international relations (Ireland)“prejudice” (South Africa) “be injurious to” (Canada) or “damage” (USA)them. The UK government initially proposed a high test of harm, of “substantial harm”, for all exemptions, but later retreated to the lower test of “prejudice”though draft legislation for Scotland still uses the19 Official Information Act 1982 [New Zealand], section 2(1). According to the Ombudsman, who enforces the New Zealand law, “the fact that information has not yet been reduced to writing does not mean that it does not exist and is not ‘held’ for the purposes of requests under the official information legislation.” test of “prejudice substantially”.
Some laws apply a proportionality test, rather than an explicit harm test, though the effect may be similar. The Danish law, for example, provides that access to files may be limited where” protection is essential with regard to…protection of Danish foreign policy”.The Swedish law contains a harm test and also requires that any restriction be “necessary having regard to…relations with a foreign state or an international organization”.Others appear to describe a more explicit balancing of benefit against the harm of disclosure. Thus the Belgian exemption allows information to be withheld where the public interest in disclosure does not outweigh the interest in protecting the state’s international relations.The Netherlands law adopts a similar formula.For certain exemptions, including international relations, the UK Act have a two-fold test: information can be withheld if disclosure could prejudice international relations but may still have to be disclosed on public interest grounds –though any ruling on public interest can be vetoed by ministers.
All FOI laws provide some protection for the internal thinking process of government. It may be explained by the need to allow ministers and officials to ‘think the unthinkable’ – that is, discuss Contentious issues in private, particularly at a time when their proposals are unformed and uncertain. It may be easier for those in government to themselves criticize ideas they disagree with, if they know that the criticism will not become public. Finally, there is the urge to present a’ united front’, so that the government is seen to be speaking with a single voice – however vigorously its members may be kicking each others’ shins under the table. But openness has important advantages. It may expose weaknesses in official thinking, and allow errors to be identified before too much damage is done. The prospect of informed scrutiny may stimulate officials to be more rigorous in their analysis, and ensure that they have properly examined the potential flaws in their arguments. It may make it easier for them to resist pressure to simply tell ministers what they want to hear. Openness may also enhance public confidence in government, reassuring people that difficult issues have been fully examined, or revealing that what they assumed to be a simple issue of right and wrong is a complex matter of balancing conflicting rights. Member states all to a greater or lesser degree protect the opinions, advice or the exchange of views which take place during policy-making. In some cases a very broadly defined exemption is used. The Danish law has a wide class exemption for internal case material, including documents prepared by the authority for its own use. These remain exempt after decisions are taken.The French law does not apply to incomplete or ‘preparatory’ documents, but these may become available once the decision to which they refer has been made. However, the legislation also contains an exemption for information whose disclosure would impair “the secrecy of Government deliberations”This may be regarded as a class exemptions, at least for advice and exchange of views at the highest levels of government, though it would not be available to officials in other authorities. The Netherlands law contains a mandatory exemption prohibiting the disclosure of “personal opinions on policy” contained in documents drawn up for during internal consultation. Personal opinions “may” be disclosed in the interests of effective democratic governance “in a form which the legislation. (See: Errata, R. ‘Access to Administrative Act on Access to Public Administration Files [Denmark], section, section 7, cannot be traced back to any individual”.However, even where anonymous, the Act appears only to allow, not require, an authority to release such material. Other laws protect such internal material only until the relevant decision has been finalized. The Swedish law has no exemption for policy discussions, as such. However, there is no right to obtain internally generated documents until a decision has been “finally settled” and the documents accepted for filing and registration.Not all working papers will necessarily be retained for filing, but those that are cannot then be withheld on the grounds that they related to policy-making. Portugal’s law also permits access once “the decision has been taken” though in a case where a decision is delayed the document becomes available a year after it was prepared.41Under the Finnish law, certain types of documents which provide a coherent account of the basis for and alternatives considered in relation to a decision or proposal become publicly accessible when they are ‘fit for their purpose’ – even if they relate to ‘unfinished business’.Other types of documents become accessible when “consideration of the pertinent matter has been concluded”.The Irish law adopts a different approach. Information relating to an authority’s “deliberative processes”, such as opinions and advice, is exempt if disclosure would be “contrary to the public interest”.The potential harm to the public interest caused by revealing a proposed decision must in particular be considered. In several cases, the Irish Information Commissioner has required the disclosure of deliberative materials after the decision has been taken, but he has also made it clear that such material could be disclosed before decisions are concluded if to do so would not be harmful.Under the UK Act, virtually all information relating to the formulation of government policy is exempt, unless the balance of public interests favors disclosure.However, any decision by the. Documents also become publicly available when they are supplied to anyone outside the authority which created them UK Information Commissioner requiring disclosure on public interest grounds could be vetoed by ministers – a provision not found in the equivalent Irish exemption. Most of the laws referred to here do not normally permit factual information relating to policy decisions to be withheld. In some laws, such as the Danish, Swedish and Australian,factual information is explicitly excluded from the corresponding exemption. Some others define the exemption in terms which appear to exclude factual information. The UK law contains a extremely narrow exclusion, purely for statistical information relating a decision which has been taken.The disclosure of other factual and statistical information relating to policy making depends whether, on balance, disclosure is held to be in the public interest. On this question, one law stands out above all others. Ireland’s Freedom of Information Act explicitly prevents factual and statistical information from being withheld under the policy exemption. But it goes beyond that. The analysis of such information must be disclosed if requested.Other important classes of information are also excluded from the exemption, including reports into the performance or effectiveness of a public body and, crucially, scientific, and technical expert opinion and advice.This provides the clearest promise that information relating to major health or safety hazards, such as the BSE examples described above, cannot be concealed from the public.
5.3 Status of Right to Information in some neighboring and Commonwealth Countries
Many Commonwealth countries have that make it an offence to destroy, conceal, erase, alter or falsify records and contain penalty provisions for these actions. Most access laws cover information contained in a variety of media using technological innovations for creating and storing information.
In India has passed the Right to Information Bill in June 2004. Their legislation is being treated as radical measures containing clear rights for those requesting information and strong enforcement mechanism. Under the Indian Act information concerning the life, liberty of a person, is required to be provided within 48 hours, and other information is to be provided within 30 days. Implementation mechanism has not been mentioned clearly in the Act. Public interest has been defined broadly, so there is scope to conceal information by interpreting it as public interest.
The Constitution of Nepal under Article 16 recognizes the right to information as a fundamental right of the citizens and in Article 13, freedom of press and publication has also been guaranteed as a fundamental right. Common code of Nepal enables any concerned party to demand the duplicate copy from case method of the court. The procedure, payment of fees and time limit is also prescribed for this purpose.
iii) Sri Lanka
In Sri Lanka, Articlel4 (1) (a) of the Constitution does not expressly recognize the right to information. It simply guarantees every citizen the freedom of speech and expression including publication. But Sri Lanka's Court has brought the right to information within the domain of Constitution.
In Pakistan, Article 19 the constitutional says that every citizen shall have the right to freedom of speech and expression and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the foreign status public order decency or morality or in relations to contempt of court commission of or incitement to information within purview of freedom of Expression.
Procedure of Allegation and Appeal
6.1 Information Tribunal
(1) For the purpose of adjudging whether any person has committed a contravention of any of the provisions of this Act, or of any rule or regulation made there under the Government may, subject to the provisions of sub-section (2) of this section, constitute an Information Tribunal for each district.
(2) No person shall be appointed as a judge of the Tribunal unless he or she is or has been or is competent to be a District Judge.
(3) The Government may appoint more than one Tribunal in a district and where such more Tribunals than one are constituted in a district the Government shall specify by a notification in the official gazette the subject matter and territorial jurisdiction of each such Tribunal.
6.2 Information Appellate Tribunal
(1) For receiving, hearing and disposing of appeals from the order, decision and judgment of the Tribunal the Government may, subject to the provisions of sub-section (2) , constitute an Information Appellate Tribunal.
(2) No person shall be appointed as a judge of the Appellate Tribunal unless he is or has been or is qualified to be a judge of the Supreme Court.
6.3 Appeals to the Information Appellate Tribunal
(1) Any person aggrieved by an order or judgments of the Tribunal may prefer an appeal to the Information Appellate Tribunal; Provided that no appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(2) Every appeal under sub-section (I) of this section shall be filed within a period of 15 days from the date on which a copy of the order appealed against is received by the person aggrieved and it shall be in such form and accompanied by such fee as may be prescribed.
Provided that section 5 of the Limitation Act, 1908 (Act IX of 1908) shall apply to an appeal under this section.
(3) On receipt of an appeal under sub-section (I) of this section, the Information Appellate Tribunal shall, after giving the parties to the appeal reasonable opportunity of being heard, pass such orders as it may deem fit and may, by such order, confirm, modify or set aside the order appealed against or send back the matter for rehearing to the Tribunal.
(4) The Information Appellate Tribunal shall send a copy of every order made by it to the designated officer or head of the office or head of the sub-office of the Public Authority, to the Tribunal and to any other interested person on application being made to it and on payment of such fees as may be prescribed.
(5) Every appeal filed under sub-section (1) of this section shall be disposed of by the Information Appellate Tribunal as expeditiously as possible as but not later than within a period of three months from the date of its receipt.
6.4 Procedure of Information Appellate Tribunal.
(1) The Information Appellate Tribunal shall have the same procedure as laid down in section 15 (3) (4) (5) (6) for the Tribunal.
6.5 Finality of decision.-
Decision passed by the Appellate Tribunal shall be final and no question regarding its propriety shall be raised before any court in Bangladesh.
Right to Information in different statutes, Acts and Laws
7.1 Bangladesh Constitution:
Article.39 (2) of the Constitution states that subject to any reasonable restrictions imposed by law in the interest of the security of the state, friendly relations with foreign state, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, a) the right of every citizen to freedom of speech and expression and b) freedom of the press are guaranteed. The interpretation of this Article is intended to include discussion and dissemination
Although the Constitution does not specifically mentions the right to information in Commonwealth countries such as India and Sri Lanka, courts have read this right into the Constitutionally recognized right to freedom of speech and expression or freedom of thought.
7.2 Official Secrets Act, 1923:
Official Secrets Act is operative in almost every country of South Asia, which were under British colonial rules. These Laws were brought into force to suit their agenda of preserving an oppressive regime. These have been adopted by independent nations for promoting vested political interest.
In this Act sub-section 8 of section 2 has defined prohibited area in a very wide range limiting the areas for collecting information.
Section 3 deals with disclosing information against the state's interest. The penalty provision under this section does not provide nay scope for defending.
Section 4 states that only for presumption of giving information to foreign agents, offense will be considered.
According to Section 5 any person can be convicted only for the disclosure of information possessed by him. In this presumption is enough to prove disclosure which can affect the sovereignty, integrity, security and the interest of the state, assist the enemy of the state, and degrade the friendly relation with the other states.
In most of the cases Government interpret the terms 'enemy1, 'foreign agent', 'security or interest' in its own way and restricts the flow of necessary information. Secrecy Act instead of being used in the time of war or emergency and for defense are being used in a way that it strikes at the core of the democratic right of the people. In Bangladesh, this Act has been used as an instrument to limit the growth of independent and impartial journalism.
7.3 The Government Servants (Conduct) Rules:
Rule 19 of the Government Servant (Conduct) Rules, 1979 says any sitting government official can not disclose any information "to other Ministries, Divisions or Departments , or to non-official persons or Press'
7.4 The Evidence Act 1872:
Restricting Articles of the Act are 123 and 124. Section 123 has put the matter of getting unpublished official records on the permission of the head of department.
"No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit." Head of the department of the concerned office can permit in providing information but nothing to do on his denial. Even the Court is bound to accept the decision of the public officer.
Under Section 124, no public officer shall be compelled to disclose communications made to him in official confidence when he considers that public interest would suffer by the disclosure. There is no clear definition of public interest, suffering. If a disclosure is against public interest is to be decided by the concerned official and does not fall within the court's jurisdiction.
According to Article 125, a civil servant is exempted from court orders for production of documents or questioning with regard to information but why privileges are claimed; have to be explained to the court.
7.5 The Rules of Business 1996:
The Rules of Business, 1996 Schedule I has described the allocation of responsibilities of respective ministries and departments/divisions. According to The Rules of Business, Ministry of Information is directed to take initiatives for publicity of internal and external policy. Moreover it is Information Ministry's responsibility to build "coordination of publicity activities of the different Ministries/Divisions and Bangladesh Missions abroad"(Schedule 1 of the rules of Business 1975). The ministry of Information has the major role for "Preservation and Interpretation of the policies and activities of the Government of Bangladesh through the medium of press" But this is not in practice.
7.7 The Penal Code:
Section 499 of this Code restricts person to express their belief, expression by words (written/ spoken), signs or by any other means he / she has been defamed, entitles him/ her to sue for defamation. This is a risk especially for journalists to collect and publish information.
7. 8 The Code of Criminal Procedure, 1898:
With the help of section 99 A, the government by official gazette can forfeit any book, publication under Press and Publication Act. This is a threat to the freedom of press and publication. Right to information includes both rights to know and right to make know.
The Right to Information Act, 2009 Bangladesh
8.1 Analysis of this Acts
The right to information shall ensure that transparency and accountability in all public, autonomous and statutory organizations and in private organizations run on government or foreign funding shall increase, corruption shall decrease and good governance shall be established. It is expedient and necessary to make provisions for ensuring transparency and accountability.
All provisions of the Act have come into force since 20 October 2008 except for Sections 8, 24, 25 which shall come into effect from 1 July 2009. This includes the sections on request for obtaining information (Sec.8), appeals mechanism (Sec.24) and complaints mechanism (Sec. 25).
Any organization/institution constituted in accordance with the Constitution of People’s Republic of Bangladesh;
Any ministry, division or office constituted under the Rules of Business as given in Article 55(6) of the Constitution; Any statutory body or institution established by or under any Act; Any private organization or institution run on government funding or with help from the government exchequer;
Any private organization or institution run on foreign funding; Any organizations or institution that undertakes public functions in accordance with any contract made on behalf of the Government or made with any public organization or institution; Any other organization or institution as may be notified by the Government in the official gazette from time to time.
The Information Providing Units include:
The head office, divisional office, regional office, district office or sub-district (Upazila) office of any department, directorate or office attached to or under any ministry, division or office of the government; The head office, divisional office, regional office, district office or sub-district (Upazila) office of an authority.
Third Party is any other party associated with the information sought, other than requester applying for information or the authority providing the information.
According to the Act, information is in relation to an authority’s constitution, structure and official activities and includes any: memo, book, design, map, contract, data, log book, order, notification, document, sample, letter, report, accounts statement, project proposal, photograph, audio, video, drawing, film, any instrument prepared through electronic process, machine readable documents and any other documentary material regardless of its physical form or characteristics.
Information does not include office note sheet or photocopies of note sheets.
Every citizen has a right to information from the Authority and the Authority shall on demand from a citizen be bound to provide information.
Partial access to information contained in records covered by the clause where information is not mandatory for publication, is allowed. A portion of the information requested can be separated from the portion that is not mandatory for publication and be given to the applicant.
The functions of the Information Commission include the following:
Issue directives to authorities for preservation, management, publication, publicity and access to information;
Prescribe the application procedure for accessing information from an authority and fix the appropriate price of information; formulate and publish guidelines and directives for preservation and implementation of citizens’ right to information;
In order to preserve the right to information, consider the provisions recognized under the Constitution or any other law in force and provide recommendations to the Government for their effective implementation by indicating the impediments;
Identify the impediments against the preservation and implementation of citizen’s right to information and recommend appropriate solutions to the Government; Conduct research on agreements related to the right to information and other international instruments and documents and recommend to the Government for their implementation;
Examine the similarities of various international instruments and existing laws on right to information, and in case of dissimilarities and in order to harmonize with the international instruments make suitable recommendations to the Government or the appropriate authority; Advise Government to ratify or sign any international instrument on right to information; Conduct research on preservation and implementation of right to information and provide support to educational and professional institutions for their implementation; Generate and increase awareness about the right to information amongst different sections of society through dissemination and publication of information and other methods;
Advise and provide support to the Government to make the necessary laws and
Administrative directives for preservation and implementation of the right to
Information; Provide necessary advice and support to organizations and institutions working on right to information and the civil society;
Conduct research and organize seminars, symposium, and workshops and similar other measures to increase people’s awareness on right to information and to disseminate the results obtained from the research;
Provide technical and other support to the authorities with the aim to ensure the right to information; establish a web-portal for Bangladesh to ensure the right to information; Oversee the systems set up under any other law on right to information.
Information Commission Fund, Budget and Financial Independence of the
An Information Commission Fund shall be constituted, the management and administration of which shall be vested in the Commission.
The salaries and allowances of the Chief Information Commissioner, Information
Commissioners, the Secretary and the other officers and employees shall be borne from this fund in accordance with the terms and conditions of their service. Other expenses of the Commission shall also be borne from this fund. The following money shall be deposited in the Information Commission Fund: Annual grant given by the Government; Grant given by any institution with the approval of the Government.
Every year the Information Commission shall within the time specified by the Government, submit an annual budget for the next financial year on the specified form for approval. It must specify the amount of money required by the Information Commission for that financial year. The government after considering the Information Commission’s requisition will allocate specified amount. The Commission, however, need not take government’s approval to spend the allocated money.
Officers and Employees of the Information Commission
The Information Commission shall have a Secretary. In order to carry out its functions in an effective manner, the Commission shall also appoint as many officers and employees as may be necessary with approval from the government in respect of the organizational framework. The salaries, allowances and terms of employment of the Secretary and other officers and employees will be decided by the Government. Moreover, the Government on request from the Information Commission may depute its officers and employees with the Commission.
Information Commission’s Annual Report
1) The Information Commission shall submit an annual report to the President on the previous year’s activities by 31 March each year.
2) Each report shall contain the following details:
Number of information requests received by each authority; Number of decisions refusing requests for information to the applicants and description of the provisions in the Act under which these decisions were made; The number of appeals filed against the decisions of the Responsible Officers and the results of these appeals;
Particulars of any disciplinary actions taken by the authorities against their
The amount of money collected by each authority; Description of the various activities undertaken by the authorities; Proposals for reform received from different authorities relating to ensuring right to information of citizens; Number of complaints received by the Information Commission; Description of the actions taken by the Information Commission in dealing with the complaints received; Number of officers penalized by the Information Commission and the descriptions of such punishments; The total amount of penalties imposed and the amount recovered by the Information Commission;
The instructions and regulations issued by the Information Commission; The accounts of income and expenditure of the Information Commission; Any other related information which the Information Commission considers necessary to be included in the report; Recommendations made to the concerned authority to take measures in case it is noticed that a particular authority is not following the provisions of the Act.
3) The President after receiving the report shall place it before the National Parliament;
4) The Information Commission shall publish and publicize the annual report through the mass media and the website;
5) Every authority shall provide the necessary documents and other related assistance to the Information Commission as needed in preparing this report.
While deciding on a complaint, or if the Information Commissioner believes that for any reason given below, any Responsible Officer will be liable for fine of 50 Taka per day up to a maximum of 5,000/- Taka for –
i) Refusing to accept an application or appeal without any reasonable cause;
ii) Not furnishing information or not taking a decision on this matter within the
iii) Malafidely denying the request for information or appeal;
iv) Instead of giving the information requested, giving incorrect, incomplete or
Misleading or distorted information and;
v) Obstructing furnishing of information in any manner.
The Information Commission has the power to impose this penalty from the date of the abovementioned actions till the date the information is provided. However, the Information Commission shall give the Responsible Officer a reasonable opportunity of being heard before the penalty is imposed on him.
In addition to the penalty, if the Information Commission is satisfied that the Responsible Officer creates impediments in providing information, it may recommend the concerned authority to take departmental action against such misconduct and request the authority to keep the commission informed about the actions taken. In case of failure to recover the penalty or compensation from the Responsible Officer, then that amount can be recovered through such procedures as are applicable for recovery of land revenue in accordance with the provisions of the Public Demands Recovery Act, 1913.
The Nation writes of a new access to information ordinance in Bangladesh:
The media gave a set of proposals for incorporation in the final draft that would end the culture of secrecy and immunity of officialdom and require government offices to be obligated to divulge information to people in the latter's rightful interests. But hardly any of these suggestions from the media were found included in the final draft which means a complete snub for the media and an attempt to superimpose a legislation on people.
As has been explained by a leading journalist of the country, the proposed draft of the Right to Information Act (RIA), if it is allowed to be enacted, will only mean a sort of reappearance of the prevailing Official Secrets Act by reintroducing it in disguise when the objective of the RIA ought to be ending secrecy ad empowering the people with the right to know about many things done by the government- veiled from their eyes- and not in the real public interest. The media underlined how it fell far short of similar acts in neighboring India, Pakistan and Nepal. The RIA in these countries expanded media's opportunities, rights and freedoms to investigate into almost anything. Thus, nothing short of substantial redrafting of this RIA will do, as has been emphasized by the journalists.
In view of the circumstances in Bangladesh, the concept of the right to information privacy, defined as "an individual's right to control the circulation of information relating to him/herself, as well as the Organization for Economic Co-operation and Development's eight principles already become outdated in today's sophisticated information-communication society. There is a need to control/restrict use of personal information so that individuals' autonomy and freedom is ensured in the current situation and to revise the concept of the right to information privacy based on this idea. This paper proposes a revision of the concept of the right to information privacy focused on control of, not access to, use of personal information. The revised concept is defined so that individuals' autonomy and freedom is ensured even in the "informational transparent" society. The current crisis in democratic governance and rising dissatisfaction with agencies of the State has highlighted the need for political change. Are there any ready solutions? Does the riddle posed by Indian socio-political conditions allow any answers? This has shown that effective answers can be sought and provided based on the determined efforts of people at the bottom. There is a basic agreement that despite all its conceptual limitations, basic democracy and democratic spaces are precious to the citizens of this country. It is a question of defining the kind of democracy we would like to shape for ourselves, and choosing the paradigms of change. The answer provided by the grassroots level right to information campaign is need in Bangladesh and democracy needs its citizens to ask more questions and demand answers. Citizens in India, particularly the poor, are not apathetic or cynical. Given an opening, they will seek to participate in governance. The entitlement of the people's right to information gives them one such opening. The primary problems with evolving a functioning participatory democracy are related to its apparent impracticality, and absence of viable institutions. By energetically presenting the social audit as a viable option, the Right to Information has opened another door for more effective citizen's participation in governance. Transferring power to the people can be more than an attractive slogan. It is true that the passage of Right to Information laws in a few States has not led to a clamor for information. There are two separate important factors for consideration, when evaluating the potential and success of the movement. The first is the effectiveness of the provisions of the legislation. How much does it really open to public scrutiny? Are there effective penalties for non-compliance. Does it apply to all institutions that affect public interest, including those bodies outside Government? How limited are the exceptions? What are the mechanisms for appeal? What are the mechanisms for making citizens access inexpensive, practical and effective? Does it help breach the attitude that all matters of the State are secret and sacrosanct. Or does it only apply to matters of governance? These are the questions that must be asked when examining any legislation. Anyone who uses the right to information provisions must be prepared to face questions and provide answers themselves. It is one issue that symbiotically links democratic and ethical practice. In a poor country like Bangladesh, this means the ordering of a society along far more egalitarian lines. It is true, that there is if anything, an excess of information, and no subsequent action. However, recent developments have shown that the social audit process is likely to force the state machinery to act. The eventual outcome will be a shift in accountability, away from hierarchical superiors to people themselves. In these signs of healthy democratic processes, the right to information is only a first step. But it is a vital and essential step in the direction of restoring sovereign power to the people. This paper is based on the experiences and efforts of the men and women who have contributed not only through their efforts to create a better world but also through their analysis perceptions and understanding. A law codifying people's right to know how their representatives and servants in the government function on their behalf is certainly not the ultimate in people's empowerment in a democracy, nor a panacea to all their problems. Yet, it surely is a major step in that direction. Access to information so far was confined to a privileged few in the country. Someone dismissed as inconsequential can now invoke the law and demonstrate that in a democracy no one is inconsequential and demand from the self-proclaimed monarchs an account for money collected from the citizens in taxes. If these monarchs hesitate to change their old habits, the citizen can now invoke the stern intervention of the judiciary in forcing them to submit to the law of the land, this law promises to be a single piece of legislation that can result in the victory of participatory democracy. It is a right that has belonged to us since our nation became a republic, and the citizens are expected to make best use of it. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency. The Act of Right to Information has been passed so we hope that it will help our citizens to aware about their rights. Now they will be inform about their basic needs. By enforcement of this Act there a good communication has been established between people and government. Now they will be able to know all of the information's but they must give that opportunity. The government is liable to give the answers of the citizen. For this reason our country will go ahead and there will be transparency in every sector. The corruption will be lost. All of the sectors of the government is bound to give any answer of any people. But there must be some bindings. The government is not bound to disclose any information which will go behind country. We hope it will help to make our country corruption less and our country will be real republic country.
- Borhan Uddin Khan, 50 years of Universal Declaration of Human Rights.
- Javaid Rahman, International Human Rights Law, England,Published 2003
- Right to Information Act 2009.
- The Daily Star
1948, Article 21.
Human Rights Commission of Pakistan, Global Trends on the Right to Information: A Survey of South Asia
(London: 2001), under 2.8.1 India, The MKSS Movement, pp. 72-75.
Article19, 2000), p. 5. Online at [ www.article19.org/docimages/869.htm] Last visited on;24-12-2009
in the process of doing so. Freedom of Information and Access to Government Records Around the World,
online at:[ http://www.freedominfo.org/survey/, Overview] Last visited on;24-12-2009
in the process of doing so. Freedom of Information and Access to Government Records Around the World,
online at:[ http://www.freedominfo.org/survey/, Overview] Last visited on;24-12-2009
access only by interested parties. European Commission, Secretariat General, Directorate B,SG/B/2, ‘Overview of Member States’ National Legislation Concerning Access to Documents’,
Brussels, 9 October 2000
reasons has been kept.19
Recommendation IX and the UN Standards.
Administrative body. However, these costs are arguably low compared to the benefits of a good
freedom of information regime, for example in terms of rooting out incompetence and corruption
or in promoting more effective decision-making.
national security, the terms of which are partly defined by Executive Order 12958 issued by President
Clinton in April 1995.
between the Netherlands and other states or international organizations”. Act of 31 October 1991,
containing regulations governing public access to government information [Netherlands] Section
in section 53(2). However, no ‘prejudice’ test applies to information supplied in confidence by another
state or international organisation [section 27(2)] and disclosure is possible only on public interest
grounds, subject to a possible veto
[Netherlands] Section 11. If the individuals agree, information can be disclosed in a form which identifies them.
subject to a separate provision which exempts them for five years [section 19(2)].
Bodies’, July 2001.
in section 19, for Cabinet papers and minutes. However, factual information submitted to the Cabinet
cannot be withheld if it relates to a published decision.