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Memorandum on the Freedom of Information Bill
Submitted to:
The Senate Committee on Information
By:
The Freedom of Information Coalition
c/o Media Rights Agenda
10, Agboola Aina Street
Off Amore Street, Ikeja, Lagos
Tel: 01-4936033 & 4936034
Fax: 01-4930831
E-mail: foi@mediarightsagenda.org
http://www.mediarightsagenda.org
March 2005
Introduction
This submission is prepared by the Freedom of Information
Coalition to facilitate the process of consideration of and reporting on
the Freedom of Information Bill (hereafter referred to as “the Bill”)
through the Committee stage and third reading in the Senate.
The Freedom of Information Coalition is an alliance of 136
civil society organizations and thousands of individuals campaigning for
the enactment of a Freedom of Information Act in Nigeria. The coalition
undertakes a number of advocacy activities aimed at sensitizing and
lobbying elected and appointed government officials both, at the federal,
state and local government levels to ensure the passage of the Freedom of
Information Bill by the National Assembly, at the earliest possible time.
The coalition also works to popularize the freedom of
information (FOI) bill among various sections of the Nigerian society and
secure their support in the push for the enactment of the Bill into law.
Member organizations of the Coalition are located across
all the zones of the federation and include the organized labour, academic
organizations, journalists’ associations, women and youths organizations,
traders associations, etc. The Freedom of Information has a secretariat
that coordinates its activities. The secretariat is hosted by Media Rights
Agenda, a non-governmental organization based in Lagos.
This submission addresses the most critical issues in the
consideration of the Bill now pending before the Senate, including the
legal bases and rationale for an FOI regime in Nigeria, entitlement to
request information, obligations of public authorities and agencies,
exceptions, documents under security classification, protection of
“whistleblowers” and resolution of disputes arising out of the operation
of the freedom of information regime to be created by the Bill.
The Freedom of Information Coalition places itself at the
disposal of the Senate and of the Committee on Information to be available
to provide any additional information or clarification that the Senate or
the Committee may require towards the consideration and passage of the
Bill.
Rationale
The need for the enactment of a legislation focused
primarily on providing for the right of access to public
records/information in Nigeria, can be justified on several fronts, the
major points being that, the first and foremost, it is central to our
collective desire as a nation to evolve a proper and active culture of
participatory democracy, which we all agree is the preferred system of
governance for our country. In this wise, the right of access to
information would provide everyone in Nigeria, with the unique opportunity
of adequately informing themselves about the workings of government and by
so doing raise the level of enlightened public discussions of how public
officials (whether elected or appointed) manage our affairs and resources
on our behalf.
Secondly, there can be no better catalyst to reviving the
near comatose national economy than the institution of a right of access
to public information. This is because, the entrenchment of such a right
in the scheme of things would help to open up the way and manner in which
all public sector related business transactions are made to public
scrutiny. The effect of this on the health of the Nigerian economy cannot
over-emphasised, especially in view of the fact that the Nigerian private
sector to a large extent, is still heavily dependent on public sector
based transactions. Consequently, enacting such a law would ensure the
creation of a level playing field for all actors in all segments of the
Nigerian economy who have to engage with this major propelling force of
the national economy and this would in turn not only help in instilling
confidence in the economic system, but also contribute immensely towards
assisting in the realization of the government’s current economic
objective of attracting increased inflow of both new direct foreign and
local investments into the country.
Another important benefit derivable from the enactment of
an access to information law in Nigeria is the significant savings that
would be made by the nation from the ability of the legislation to assist
with the current crusade to curb corrupt practices in the public service,
through subjecting all government transactions to public scrutiny. It
would also help in the efficient allocation of scarce national resources
to achieve maximum returns through the ability of the people to, using the
information available at their disposal, put government officials to task
over the process of prioritizing resource allocation for national
development.
The Freedom of Information Bill is consistent with the
vision of the Executive arm of government about the elements required to
transform the national economy as enunciated in its National Economic
Empowerment Development Strategy (NEEDS) document. Chapter 6 of the NEEDS
document identifies a Right to Information Act as one of two priority
legislative interventions to bolster Nigeria’s economic transformation,
the other being the Fiscal Responsibility Bill. The NEEDS document
contends, and we agree, that a “Right to Information Act will engender
openness and feedback through a process of streamlining and rationalizing
the system for information collection, collation, storage, and
dissemination on a timely basis” in addressing what the document calls a
culture of “corruption and abuse of positions and privileges”. Under the
NEEDS calendar of accomplishments, this Bill should have been passed in
2004.
Legal Basis
The freedom to seek information is guaranteed by a number
of international instruments to which Nigeria is a State party, including
the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights. It is also impliedly guaranteed by Section
39 of the 1999 Nigerian Constitution. This right is similarly guaranteed
in Article 9(1) of the African Charter on Human and Peoples’ Rights, which
is part of Nigeria’s domestic law under the African Charter (Ratification
and Enforcement) Act.
At its Summit in Maputo, Mozambique in July 2003, the leadership of the
African Union endorsed a set of Principles, adopted the previous year by
the African Commission on Human and Peoples’ Rights, which elaborated
Article 9 of the African Charter. The Principles recognize and guarantee
the right of “everyone to access information held by public bodies” and
provides as follows:
1.
“Public bodies hold information not for themselves but as
custodians of the public good and everyone has a right to access this
information, subject only to clearly defined rules established by law.
2.
The right to information shall be guaranteed by law in
accordance with the following principles:
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everyone has the right to access information held by public
bodies;
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everyone has the right to access information held by
private bodies which is necessary for the exercise or protection of any
right;
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any refusal to disclose information shall be subject to
appeal to an independent body and/or the courts;
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public bodies shall be required, even in the absence of a
request, actively to publish important information of significant public
interest;
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no one shall be subject to any sanction for releasing in
good faith information on wrongdoing, or that which would disclose a
serious threat to health, safety or the environment save where the
imposition of sanctions serves a legitimate interest and is necessary in a
democratic society; and
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secrecy laws shall be amended as necessary to comply with
freedom of information principles.
3.
Everyone has the right to access and update or otherwise
correct their personal information, whether it is held by public or by
private bodies.”
The United Nations Special Rapporteur on the protection and
promotion of the right to freedom of opinion and expression underscored
the importance of freedom of information in his report to the UN
Commission on Human Rights in 1995 when he stated: “The right to seek or
have access to information is one of the most essential elements of
freedom of speech and expression. Freedom will be bereft of all
effectiveness if the people have no access to information. Access to
information is basic to the democratic way of life.”
The Commonwealth has also acknowledged and underlined the
link between freedom of information and good governance. At the
Commonwealth Heads of Government Meeting (CHOGOM) held in Durban, South
Africa, in November 1999, the body adopted a set of Freedom of Information
Principles, which had earlier been endorsed by Commonwealth Law Ministers.
It unequivocally declared its recognition of “the importance of public
access to official information, both in promoting transparency and
accountable governance and in encouraging the full participation of
citizens in the democratic process.”
As earlier stated, quite apart from being a right in
itself, a regime of freedom of information facilitates the ability of
citizens to participate in government, build a united country, hold
government accountable, and ensure just and optimal economic performance
in a liberalized economy.
The Commonwealth has emphasized that the benefits such
access can bring includes the facilitation of public participation in
public affairs, enhancing the accountability of government, providing a
powerful aid in the fight against corruption as well as being a key
livelihood and development issue.
In his report to the UN Commission on Human Rights in 2000,
the UN Special Rapporteur on freedom of opinion and expression again
expressed his continuing concern about the “tendency of Governments and
the institutions of Government, to withhold from the people information
that is rightly theirs.” He stressed that “the right to seek, receive and
impart information is not merely a corollary to freedom of opinion and
expression; it is a right in and of itself. As such, it is one of the
rights upon which free and democratic societies depend. It is also a
right that gives meaning to the right to participate, which has been
acknowledged as fundamental to, for example, the realization of the right
to development.”
He therefore urged governments to either review existing legislation or
adopt new legislation on access to information. Among the important
considerations in the review or adoption of such laws are:
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Freedom of
information implies that public bodies, publish and disseminate widely
documents of significant public interest, for example, operational
information about how the public body functions and the content of any
decision or policy affecting the public;
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All public
bodies should be required to establish open, accessible internal systems
for ensuring the public’s right to receive information; the law should
provide for strict time limits for the processing of requests for
information and require that any refusals be accompanied by substantive
written reasons for the refusal(s);
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The law should
require that other legislation be interpreted, as far as possible, in a
manner consistent with its provisions; the regime for exceptions
provided for in the freedom of information law should be comprehensive
and other laws should not be permitted to extend it;
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Individuals
should be protected from any legal, administrative or employment-related
sanctions for releasing information on wrongdoing, viz. the commission
of a criminal offence or dishonesty, failure to comply with a legal
obligation, a miscarriage of justice, corruption or dishonesty or
serious failures in the administration of a public body.
Freedom of Information laws across the world are now guided
by a set of principles. Originally drawn up by ARTICLE 19, the
International Centre Against Censorship, in London, “The Public’s Right to
Know: Principles on Freedom of Information Legislation” were subsequently
endorsed by the UN Special Rapporteur on the protection and promotion of
the right to freedom of opinion and expression as well as the UN
Commission on Human Rights. The principles are based on international and
regional law and standards, evolving state practice (as reflected, for
instance, in national laws and judgments of national courts) and the
general principles of law recognized by the community of nations.
Enacting the Freedom of Information Bill into law will put
Nigeria substantially in compliance with these principles.
Short Title to
the Proposed Act (Freedom of Information Act)
The title of the law is generally not of tremendous
significance. Various countries around the world, which operate freedom
of information laws, have different titles for their laws. For instance,
the world’s oldest freedom of information law in Sweden is called the
Freedom of the Press Act (in existence since 1766). However, in the
United States of America, it is called the Freedom of Information Act, as
it is also known in Australia, in Belize, Ireland, and Canada. The Czech
Republic has a Freedom of Information Law as does Israel. Denmark has an
Access to Information Act and an Access to Public Administration Files
Act; in Finland, the Publicity (of Public Actions) Act went into effect on
December 1, 1999, replacing the Publicity of Official Documents Act of
1951; Greece has a Code of Administrative Procedure; Hong Kong has a Code
on Access to Information; Japan has a Disclosure of Information Act;
South Korea has the Act on Disclosure of Information by Public Agencies;
in The Netherlands, it is called the Government Information (Public
Access) Act; New Zealand has the Official Information Act of 1982 and the
Local Government Official Information and Meetings Act of 1987; in Norway,
there is the Public Access to Documents in the (Public) Administration
Act; Thailand has the Official Information Act; while South Africa has the
Promotion of Access to Information Act.
What is important is that the text of the law accords with
the principles of maximum disclosure and that information should be
defined or understood to include all records held by a public body,
regardless of the form in which the information is stored, i.e. whether as
a document, tape, electronic recording etc.
Who is Entitled
to Request Information
The Freedom of Information Bill provides in section 2 that
every citizen of Nigeria should have a legally enforceable right to
request access to any record under the control of a government or public
institution and that an applicant need not demonstrate any specific
interest in the information being requested.
This provision also accords with the principle of maximum
disclosure, which establishes a presumption that all information held by
public bodies should be subject to disclosure, and that this presumption
may be overcome only in very limited circumstances, i.e. when the
information requested falls within the scope of exemptions. The underlying
rationale for this principle is that the right of access to information is
a basic right. In his report to the UN Commission on Human Rights in
1995, the UN Special Rapporteur on the protection and promotion of the
right to freedom of opinion and expression stated: “In contemporary
society, because of the social and political role of information, the
right of everyone to receive information and ideas has to be carefully
protected. This right is not simply a converse of the right to impart
information but it is a freedom in its own right.”
The overriding goal of any freedom of information legislation, therefore,
should be to implement a regime of maximum disclosure in practice.
Public authorities and bodies therefore have an obligation
to disclose information and every member of the public has a corresponding
right to receive information. Everyone present in the territory of the
country should benefit from this right. This is the principle adopted by
the 1999 Constitution of the Federal Republic of Nigeria in the
application of the fundamental rights provisions in Chapter Four. The
rights therein guaranteed apply to “every person”. We respectfully submit
that this principle should also apply to the right to information.
In the exercise of this right, individuals should not be
required to demonstrate a specific interest in the information being
requested. To do so would not only unduly delay the processing of requests
for access to information and increase costs unreasonably, it would also
frustrate the implementation of a freedom of information regime as the
claim that an applicant has not demonstrated or proved sufficient personal
interest in the information being requested would provide a ready excuse
for public authorities and bodies to unfairly withhold information.
Where a public authority seeks to deny access to
information, the onus of justifying a refusal of access at each stage of
the proceedings should be on the public authority. In other words, the
public authority must show that the information, which it wishes to
withhold, falls within the scope of permissible exemptions.
Obligation on
Public Authorities and Institutions to Publish Information
Section 3 of the Freedom of Information Bill provides that
the head of every government or public institution to which the law
applies should cause to be published in the Federal Gazette at least once
every year certain information about that institution.
This provision again accords with international standards
which require that public bodies should be proactive in the publication
and dissemination of key categories of information and, in particular, the
principle that freedom of information implies not only that public
authorities and bodies accede to requests for information but also that
they publish and disseminate widely, documents of significant public
interest, subject only to reasonable limits based on resources and
capacity.
For the implementation of a freedom of information
legislation to be possible, members of the public must have a reasonable
familiarity with the nature and types of information and records kept by
different public bodies and authorities which would assist them in
determining what public body or authority to approach for any record or
information.
Time Limits for
Granting or Refusing Access to Information
The time limit within which decisions must be made on
requests for access to records and information is an important means of
ensuring that public authorities process requests efficiently and that
applicants are satisfied and receive their information within a reasonable
time. The need to ensure that applicants receive the information requested
within a reasonable time is of great importance as information may lose
its value or interest over time. The absence of time limits therefore may
undermine public confidence in the process.
But time limits must strike an appropriate balance between
the reasonable needs and interests of the applicant with the practical
capacity of public authorities or institutions to process requests. In
many countries, which operate freedom of information laws, one way of
achieving this balance is to provide for a relatively strict initial time
limit, which may then be extended where necessary. This ensures that
public authorities are under some obligation to act quickly, which often
results in bringing about greater efficiency in record-keeping and
instituting access mechanisms, while allowing for extension where the
provision within the original time limit might be unrealistic given the
nature and volume of records or information requested.
Section 5 of the Freedom of Information Bill provides for
an initial time limit of seven days, which may be extended for another
seven days. We recommend that this provision should be retained as it
strikes an appropriate balance between the need of the applicant to
receive requested information within a reasonable time and reality of
giving public authorities and institution adequate time to process
requests for access to information with a possibility of extending the
period where justified.
Besides, although the initial time limit may appear very
strict, as public authorities and institutions begin to implement a
freedom of information regime with the attendant improvement and
efficiency in record keeping and the handling of requests for access to
records and information, the time needed by such authorities and
institutions to process applications will progressively reduce.
Fees
Payable to Access to Records and Information
The Freedom of Information Bill makes extensive provisions
regarding the payment of fees for search, duplication, review, and
transcription of documents in accordance with the principle that
individuals should not be deterred from making requests for access to
information and records by excessive charges. (See section 9 of the
Bill).
It is essential that the fees payable for access to records
and information are not so high as frustrate the right of access. We are
of the opinion that operating a freedom of information regime would not
result in any substantial increase in costs to the government and other
public authorities because most government agencies and departments in the
country already have an existing mechanism for record keeping, albeit it
might not be very efficient. Thus the only cost element that we would
anticipate in terms of implementing a law of this nature, is the added
cost of making this existing public record keeping mechanism efficient, in
meeting the needs of an access to information regime. This minimal cost
element envisaged would be adequately taken care of by the immense
benefits which a regime of access to information brings to the society by
instituting greater transparency, accountability and efficiency and as
such costs ought not to be an overriding consideration. The cost to the
government must be seen in the light of the capacity of a Freedom of
Information Act to advance democracy and enhance public participation.
Moreover as the government departments and agencies become more efficient
in their record keeping and in handling requests for access, the cost will
reduce progressively.
The provisions regarding fees in the Freedom of Information
Bill are consistent with international standards in this area and we see
no reason for any changes to these provisions. In particular, we recommend
that the Bill retain the reference to “reasonable standard charges”, the
fee waiver for requests in the public interest and the prohibition of
“uneconomic” fee collection and advance payments.
Destruction or
Falsification of Records
Section 10 of the Freedom of Information Bill makes it a
criminal offence punishable on conviction with three years imprisonment
for any officer or head of any government or public institution who tries
or willfully destroys any record kept in his or her custody or attempts to
alter such documents before they are released to any person requesting
access to them.
This provision is necessary to protect the integrity and
availability of public records. It is not inconceivable that when public
authorities or bodies do not wish to grant access to certain records,
which have been requested by members of the public, they might resort to
destruction or falsification of such records. Recent experience in the
United States where officials of the Enron Corporation destroyed large
volumes of documents in order to cover up monumental frauds within the
corporation bear testimony to this possibility.
Principles of freedom of information legislation require
that the law should provide that obstruction of access to public records
or the willful destruction of records is a criminal offence. The
principles also require that the law should establish minimum standards
regarding the maintenance and preservation of records by public bodies,
for instance, by providing that such bodies should be required to allocate
sufficient resources and attention to ensuring that public record-keeping
is adequate. To this extent, the Freedom of Information Bill does not go
far enough.
In addition, the principles also require that in order to
prevent any attempt to doctor or otherwise alter records, the obligation
on the public authority or institution to disclose should apply to records
themselves and not just the information they contain. In order words,
public authorities and institutions should be obliged to disclose the
records kept by them and not just the information contained in those
records. This reinforces the provisions of section 3 of the Bill which
require the head of every government or public institution to publish in
the Federal Gazette at least once a year a description of documents,
manuals files, reports and other such records kept by that institution.
Exemptions from Right of Access
The Freedom of Information Bill contains a range of
exemptions from the general right of access to information, including in
cases of law enforcement investigation, information which may be injurious
to the conduct of international affairs and defence; trade secret or
financial, commercial, scientific or technical information which may
prejudice the competitive position of a government or public institution;
personal information; third party information; legal practitioner/client
privilege, and course or research materials.
In this regard, the Bill satisfies the requirement that a
complete list of the legitimate grounds, which may justify non-disclosure
of information or records, should be provided in the law and that the list
should include only interests which constitute legitimate grounds for
refusing to disclose documents. The general principle is that public
bodies or authorities should grant all requests for information unless
they can show that the information falls within the scope of the limited
regime of exemptions.
Under the Freedom of Information Bill, no public body or
authority is completely excluded from the application of the proposed law,
even if many of their functions fall within the exemptions. In
accordance with freedom of information principles, non-disclosure of
information has to be justified on a case-by-case basis. The law also
applies to all branches of government (that is, the executive, legislative
and judicial branches) as well as to all functions of government
(including, for example, functions of security and defence bodies). The
Bill also applies to all tiers of government – Federal, State and Local
Government.
The principles also provide that
a refusal to disclose information is not justified unless the public
authority can show that the information meets a strict three-part test.
The three-part test include that: the information must relate to a
legitimate aim listed in the law; the 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.
A key aspect of the principles in relations to exemptions
and the three-part test is the requirement that even if it can be shown
that disclosure of the information would cause substantial harm to a
legitimate aim, the information should still be disclosed if the benefits
of disclosure outweigh the harm. For example, certain information may be
private in nature but at the same time expose high-level corruption within
government. In such cases, the harm to the legitimate aim must be weighed
against the public interest in having the information made public. Where
the public interest in having the information is greater, for instance, in
such a case where the longer-term public interest is best served by
exposing and rooting out the corruption, the law should provide for
disclosure of the information.
In order to maintain the principle of maximum disclosure
underlying any freedom of information regime, it is essential that all
refusal to disclose are subject to a public interest override.
The Freedom of Information Bill provides for public
interest disclosure by public authorities in relation to certain
exemptions, for example relating to international affairs and defence (see
section 13(2) of the Bill).
Judicial Review
Most Freedom of Information laws around the world provide
for decision-making on freedom of information at three levels namely, by
the public authority or institution to which the original request is made,
by an independent administrative body with specific powers in relation to
freedom of information, and by the courts. These laws generally establish
an independent administrative body, such as an Information Commissioner or
an Ombudsman, with various powers to ensure that the legislation is being
applied properly and in a timely fashion.
Section 22 of the Freedom of Information Bill provides that
any person who has been refused access to a record requested under the
proposed Act may apply to the Court for a judicial review of the
decision. But the Bill does not provide for an independent administrative
body to promote compliance with its provisions and to provide an
accessible form of appeal against refusals to disclose information by
public authorities.
Although we appreciate the importance of having an
independent administrative body to review refusals by public authorities
or bodies as a first step before any approach is made to the courts, we do
not think that such a body would be feasible in this case.
For an administrative body to be effective, it must be
accessible to people in all parts of the country. The cost of setting up
an independent administrative body, which would have offices and personnel
in all parts of the country, would be phenomenal. The inability or
failure of the government to provide the resources for the setting up of
such a body may ultimately frustrate the implementation of the law.
Since the courts already exist in all parts of the country,
no additional cost would be required in providing effective judicial
oversight for the implementation of the freedom of information regime.
For this reason, we suggest that the provisions relating to judicial
review should be left as they are.
In any event, under section 32 of the Bill, each government
or public institution is required each year to submit to the
Attorney-General of the Federation a report for the preceding fiscal year
stating the number of determinations made by that department or
institution not to comply with requests for records made to it and the
reasons for such determination as well as other information, including the
number of requests for records pending before it as of October 31 of the
preceding year, how long those requests have been pending, the number of
requests for records it received, the total amount of fees collected, the
number of full time staff devoted to processing requests, etc. The
Attorney General is also required to develop reporting and performance
guidelines for the reports required in according with the section. All
these reports are to be made public.
Under section 33(4) of the Bill, the Attorney-General of
the Federation is in turn required to report to relevant committees of the
National Assembly on the implementation of the proposed Freedom of
Information law, including information about the number of cases arising
under the proposed Act, the exemptions involved in each case, the
disposition of such cases, the cost, fees and penalties assessed.
The Attorney General is also required to include in the
report a description of the efforts taken by the Ministry of Justice to
encourage all government or public institutions to comply with the Act.
These are additional provisions, which will aid monitoring
of implementation of the proposed Act with oversight functions resting
ultimately with the National Assembly.
Documents Under Security Classification
Section 31(1) of the Freedom of Information Bill provides
that the fact that any record in the custody of a government or public
institution is kept by that institution under security classification or
is a classified document within the meaning of the Official Secrets Act
does not preclude it from being disclosed pursuant to a request for
disclosure under the provisions of the Act. Section 30(1) of the Bill
also overrides the provisions of the Criminal Code, the Penal Code, the
Official Secrets Act or any other such enactment with respect to
disclosure of any record.
These provisions are consistent with a key principle of
freedom of information laws which requires that other legislation should
be interpreted, as far as possible, in a manner consistent with the
provisions of the Freedom of Information law and that where this is not
possible, other legislation dealing with publicly-held information should
be subject to the principles underlying the freedom of information
legislation.
In particular, the principle requires that secrecy laws
should not make it illegal for officials to divulge information, which
they are required to disclose under the freedom of information law.
Ideally, laws such as the Official Secrets Act and similar
provisions contained in the Criminal Code, the Penal Code, and other such
laws ought to be repealed to actively promote open government. However,
the Freedom of Information Bill falls short of this requirement. However,
it is hoped that in the longer term, a commitment will be made to bring
all laws relating to access to information into conformity with the spirit
and principles underlying the freedom of information law.
In addition, the principle also requires that officials
should be protected from sanctions where they have acted reasonably and in
good faith, disclosed information pursuant to a freedom of information
request, even if it subsequently transpires that the information is not
subject to disclosure. This is what the provisions of section 30(1) of the
Freedom of Information Bill seek to achieve. Otherwise, the culture of
secrecy, which pervades many government bodies and institutions, will
remain, as officials may be excessively cautious about requests for
information, to avoid any personal risk.
Protection for Whistleblowers
Section 30(2) of the Freedom of Information Bill provides
that nothing contained in the Criminal Code or the Official Secrets Act
shall prejudicially affect any public officer who, without authorization,
discloses to any person, any public record or information which he
reasonably believes to show violation of any law, rule or regulation,
mismanagement, gross waste of funds, fraud, and abuse of authority or a
substantial and specific danger to public health or safety notwithstanding
that the information was not disclosed pursuant to the provisions of the
proposed Act.
A principle of freedom of information legislation worldwide
is that individuals should be protected from any legal, administrative or
employment-related sanctions for releasing information on wrongdoing.
"Wrongdoing" in this context includes the commission of a criminal
offence, failure to comply with a legal obligation, a miscarriage of
justice, corruption or dishonesty, or serious misadministration regarding
a public body. It also includes a serious threat to health, safety or the
environment, whether linked to individual wrongdoing or not.
Whistleblowers should be protected as long as they acted in
good faith and in the reasonable belief that the information was
substantially true and disclosed evidence of wrongdoing. Such protection
ought to apply even where disclosure would otherwise be in breach of a
legal or employment requirement.
In some countries, the protection of whistleblowers is
conditional upon a requirement to release the information to certain
individuals or oversight bodies. While this is generally appropriate,
protection should also be available, where the public interest demands, in
the context of disclosure to other individuals or even to the media. The
"public interest" in this context would include situations where the
benefits of disclosure outweigh the harm, or where an alternative means of
releasing the information is necessary to protect a key interest.
The principles recognize that such a provision is important
because of situations where whistleblowers may need protection from
retaliation, where the problem is unlikely to be resolved through formal
mechanisms, where there is an exceptionally serious reason for releasing
the information, such as an imminent threat to public health or safety, or
where there is a risk that evidence of wrongdoing will otherwise be
concealed or destroyed.
Conclusion
As stated earlier, the Freedom of Information Coalition and
its members stand ready to provide any additional information or
clarification that the Senate or any of its relevant Committees may
require towards the consideration and passage of the Bill. Should you
require our assistance, we would be pleased to render it, including by
providing relevant resource materials and comparative literature on
freedom of information laws around the world.
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