Afghanistan
Name of law: Access to Information Law
First adopted: 2014
Last modified: 2019-10
RTI Rating last updated: 2020-01
First adopted: 2014
Last modified: 2019-10
RTI Rating last updated: 2020-01
Introduction
Afghanistan’s constitutional and legislative right to information protections are among the strongest in the world. Adopted in 2018, the Afghani RTI Law builds on a constitutional protection for the right to information, introducing strong and robust procedural safeguards. The legislation is exceptionally broad in scope regarding requestors, public authorities, and information, with limited exceptions in line with international standards. Possible areas for further improvement would be to ensure the complete independence, including in budgetary terms, of the Access to Information Commission and the creation of a system of redress vis-à-vis public authorities which fail systematically in their statutory duties to disclose requested information. Regardless, the Afghan law lies at the forefront of right to information legislation internationally. The original Dari version of the law is available here.| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 5 | 6 |
| 2 | Scope | 30 | 30 |
| 3 | Requesting Procedures | 28 | 30 |
| 4 | Exceptions & Refusal | 30 | 30 |
| 5 | Appeals | 26 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 14 | 16 |
| ∑ = 139 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | Constitution 50. The citizens of Afghanistan have the right of access to the information from the government offices in accordance with the provisions of law. This rights has no limits except violation of the rights of the others and public security. | |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 5(1) An applicant is entitled to right of access to information from institutions according the provisions of this law. (2) Institutions are responsible to provide information to applicants and the public according to provisions of this law. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | 2(2) The objectives of this law are: 2. Ensure transparency, strengthen the culture of provision of information, promote people’s participation in good governance, ensure accountability in the conduct of institutions, and combat corruption. | Emphasises benefits but no rule on interpretation. |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 3(3) Applicant: Is a legal or natural person who requests information from institutions. | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | 3(1) Information: Any type of documents and recorded or registered information including written, audio, visual, sample or model. | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 3(1) Information: Any type of documents and recorded or registered information including written, audio, visual, sample or model. 6(3) The applicant is not required to give reasons for requesting the information or to name specific documents. | Includes both documents and information. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | YES | 8 | 3(6) Institutions include Offices of the President, National Assembly, the Judiciary, ministries, independent directorates, independent state commissions, local administrations, provincial councils, district councils, village councils, municipalities, municipal councils, state-owned enterprises, government corporations and joint ventures and all other bodies and institutions established by law. This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | Very comprehensive |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | 3(6) Institutions include Offices of the President, National Assembly, the Judiciary, ministries, independent directorates, independent state commissions, local administrations, provincial councils, district councils, village councils, municipalities, municipal councils, state-owned enterprises, government corporations and joint ventures and all other bodies and institutions established by law. This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | 3(6) Institutions include Offices of the President, National Assembly, the Judiciary, ministries, independent directorates, independent state commissions, local administrations, provincial councils, district councils, village councils, municipalities, municipal councils, state-owned enterprises, government corporations and joint ventures and all other bodies and institutions established by law. This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 3(6) Institutions include ... state-owned enterprises, government corporations and joint ventures and all other bodies and institutions established by law. This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 3(6) Institutions include Offices of the President, National Assembly, the Judiciary, ministries, independent directorates, independent state commissions, local administrations, provincial councils, district councils, village councils, municipalities, municipal councils, state-owned enterprises, government corporations and joint ventures and all other bodies and institutions established by law. This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | YES | 2 | 3(6) Institutions include … . This definition also includes any organization or institution which is owned, controlled or substantially funded by one of the institutions defined above as well as any other body which undertakes a public function. | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 6(3) The applicant is not required to give reasons for requesting the information or to name specific documents. ... | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | 6(3) ... The applicant shall only be required to provide information necessary to identify the information requested and to provide it to the applicant. | |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | 3(5) Information request form is a printed or electronic sheet that is provided to the applicant, in accordance with this law, in order to provide details of his/her request for information. 6(1) The applicant shall request in writing or use the access to information form and refer to the relevant institution in order to request information. 6(2) The Information Request Form shall be prepared by the Commission and shall be made widely accessible to the public for free in both printed and electronic format. | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 13(1) Public information Officer shall perform the following duties: 1-Explain the Information Request Form to the applicant and in case of demand, provide written explanation on paper or electronically. 2-Provide Information Request Form to the applicant and assist him or her based on provisions of this law and other relevant regulations. 13(3) Where an institution requires further clarification in order to identify the information sought, the Public Information Officer shall work with the applicant to clarify the request. | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | 13(2) Where the applicant is unable to submit a written request due to disability or illiteracy, the public information officer shall write down the oral request and communicate it to the satisfaction of the applicant before obtaining his/her signature or thumb impression as the case may be. (3) Where an institution requires further clarification in order to identify the information sought, the Public Information Officer shall work with the applicant to clarify the request. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | YES | 2 | 13(1) Public information Officer shall perform the following duties: 3-Provide applicants with a receipt upon receiving a request for information. 4-Inform the applicant within 5 working days about availability or lack of availability of the requested information. | Fails to impose a direct obligation on bodies to provide the receipt within 5 days but this is strongly implied by the deadline about availability. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | YES | 2 | 13(4) When the requested information is not available within the institution and it becomes evident that another institution holds the information, the institution shall forward the requested information to the institution that holds the information and inform the applicant of the same. | |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | 6(4) Institutions shall respond to applicants in a written or electronic format that is accessible to the applicant. 10(1) Institutions shall provide information to the applicant in the format requested provided that it does not cause damage to the original document. An applicant can request information in any of the following forms: 1-A copy of the original document in either paper or electronic form. 2-An opportunity to inspect documents, models and samples at the premises of the public institution. 3-A copy of the original document in a written, audio or visual form. 4-Providing information in audio or visual form. 5-Providing a sample. | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | 8(1) Institutions shall provide the requested information to the applicant as soon as possible …. | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | YES | 2 | 8(1) Institutions shall provide the requested information to the applicant as soon as possible within 10 working days beginning from date information is requested. | |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | 8(1) ... In case the institutions have a justifiable reason(s), this duration can be extended to another 10 working days. In case of any extension of the period, the institution shall contact the applicant and provide him/her a written justification including reasons for extension. | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 9(1) When provision of information demand expenses, the applicant is responsible to pay for the actual costs incurred. Otherwise the request is rejected. (2) The costs in paragraph one shall only include the cost of reproducing information and sending it to the applicant. | It is clear that there is no fee for making requests. The form is also free (see 6(2)). |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | YES | 2 | 9(1) When provision of information demand expenses, the applicant is responsible to pay for the actual costs incurred. Otherwise the request is rejected. (2) The costs in paragraph one shall only include the cost of reproducing information and sending it to the applicant. Reproduction includes copying the original document in hard, audio or visual format. Applicants are exempted from paying any costs for the first twenty pages of the requested information. (3) The amount of costs and the manner of payments is established in accordance with the procedures prepared by the Access to Information Commission in consensus with the Ministry of Finance. | |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | N/A | Not mentioned |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | 15(5) Individuals may re-use the information made public by an institution. | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | YES | 4 | 39. The provisions of this law, with regard to access to information, supersedes all other laws. | |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | YES | 10 | 16(1) In the following instances, public access to information is prohibited: 1-If the disclosure would harm independence, national sovereignty, territorial integrity, and public security. 2-If the disclosure would harm Afghanistan’s political, economic and social relations with other countries. 3-In case it would endanger the life and properties of an individual. 4-In case it becomes a barrier in the process of detection or prevention of a crime. 5-In case it adversely affects detection, investigation or prosecution of a suspect or a precautionary measure in such cases. 6-In case it adversely affects fair trial or enforcement of verdict. 7-in case it violates the privacy of an individual. 8-In case information is harmful to legitimate commercial interests, private properties and bank accounts, unless disclosure is allowed under any other law in force. (2) The following cases are exempted from clause 7 and 8 of Article 16 (1): 1- In case a competent court approves disclosure of personal information. 2- In case the copyright law and competition support law and all other legislative documents are not violated. | |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | YES | 4 | 16(1) In the following instances, public access to information is prohibited: 1-If the disclosure would harm independence, national sovereignty, territorial integrity, and public security. 2-If the disclosure would harm Afghanistan’s political, economic and social relations with other countries. 3-In case it would endanger the life and properties of an individual. 4-In case it becomes a barrier in the process of detection or prevention of a crime. 5-In case it adversely affects detection, investigation or prosecution of a suspect or a precautionary measure in such cases. 6-In case it adversely affects fair trial or enforcement of verdict. 7-in case it violates the privacy of an individual. 8-In case information is harmful to legitimate commercial interests, private properties and bank accounts, unless disclosure is allowed under any other law in force. (2) The following cases are exempted from clause 7 and 8 of Article 16 (1): 1- In case a competent court approves disclosure of personal information. 2- In case the copyright law and competition support law and all other legislative documents are not violated. | See also Article 3(2), defining "personal information". |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | YES | 4 | 16(3) Information under Article 16 (1) shall be made available if it is in the public interest. (4) The public interest under Article 16 (1) shall be determined by the relevant institution. | |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | YES | 2 | 16(6) No prohibition shall be applied to information which is more than 20 years old, provided that this may be extended, in exceptional cases, for up to a maximum of another ten years, at the recommendation of the highest level official responsible for the institution which holds that information and with the approval of the Commission. | The harm tests mean that exceptions only apply when harm will be caused. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | YES | 2 | 16(5) Where a request for information relates to information provided on a confidential basis by a third party, the institution shall contact that third party with a view to obtaining either his or her consent to disclosure of the information or objection to disclosure, provided that where he or she objects to disclosure, his or her objection shall be taken into account, but the decision as to whether or not the information falls within the scope of the prohibitions shall be assessed by the institution. | |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 16(7) Where part of a record contains prohibited information, that part shall be severed from the record and the remainder shall be disclosed. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 14(1) Where a request is refused, in whole or in part, on the basis that the information is prohibited from public access, the Public Information Officer shall provide written notice to the applicant, specifying the exact prohibition and legal provision relied upon. (2) Public Information Officer shall provide details regarding the right of the applicant to lodge a complaint against a decision rejecting his or her request for information. | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | Partially | 1 | 32(1) (1) If an applicant feels that his/her request for information has not been addressed or is not satisfied with the institution’s treatment, he/she can lodge a complaint to the same institution or the Commission. 33(1) (1) The Public Information Officer of the institution that the applicant has requested information from, shall investigate the complaint and respond to the complainant based on the provisions of this law in five working days. | Review again by the PIO is not a new review as is required here (should be a more senior officer at the same public body). |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 32(1) (1) If an applicant feels that his/her request for information has not been addressed or is not satisfied with the institution’s treatment, he/she can lodge a complaint to the same institution or the Commission. 33(2) (2) In case the applicant lodges a complaint first with the institution that he or she requested information from, after receiving a written answer or after five working days can address his/her complaint to the commission. | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | Partially | 1 | 20(1) In order to select the members of the commission, a selection committee shall be formed with the following structure: 1. Minister of Information and Culture, as the chairman. 2. A member of Supreme Court based on decision of Supreme Court’s High Council, as member 3. A member of the Religious, Cultural, Education and Higher Education Committee of the Lower House, as member 4. Member of the Religious, Cultural and Higher Education Committee of the Upper House, as member. 5. Head of legislative affairs of ministry of justice as a member. 6. A member of Afghanistan Independent Human Rights Commission as elected by it, as member 7. One elected representative of journalists’ unions, as member 8. Authorized representative of Independent Bar Association, as member (2) Ministry of Information and Culture shall function as the secretariat of the committee. (3) The Selection Committee shall announce acceptance of application for membership of the commission after five working days following its first meeting. (4) The Selection Committee shall identify 21 qualified candidates through a competitive process and introduce them to the President of the Islamic Republic of Afghanistan within 10 working days after the end of the vacancy announcement. (5) The President of the Islamic Republic of Afghanistan shall choose 7 out of 21 candidates considering their professional background and gender-balance as members of the commission with following terms: 1. Four member for the period of five years. 2. Three member for the period of three years. (6) Members of commission shall be appointed for 5 years in the following terms. (7) Members of the commission can only be appointed for one term based on clause (5) and (6) of this article. (8) Members of the Commission shall not hold any job during their tenure except teaching in a higher education institutions. 26(1) Any member of the Commission shall lose membership in the following circumstances: 1-A written resignation after it is approved by the President. 2-Physical and mental incapacity which prevents the member from performing his/her duties. 3-Sentence to imprisonment for more than six months. 4-Provision of false information to fulfill membership criteria. 5-Completion of tenure. 6-Lack of observing laws, regulations, rules, and procedures related to the Commission. (2) If a member of Commission loses membership in one of the cases mentioned in Clause (1) and more than one year of her/his tenure remains, the Ministry of Information and Culture shall call the Selection Committee as mentioned in Article 20 (1) within 10 work days and the Selection Committee shall announce acceptance of application and Curriculum Vitas (CVs) for vacant membership of the Commission. (3) The committee shall introduce two qualified candidates from among all candidates to the President. (4) The President shall choose one as a member of the Commission for the remaining time period. 27. The five members of the commission shall decide the circumstances under Clause 2, 4, 6 of the Article 26 to dismiss one of its members. | Strong protections for tenure and good appointments procedure but, ultimately, one point deducted due to undue role for Minister of Information in appointments process (chair and secretariat of selection committee) |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | Partially | 1 | 30 (1) The Commission prepares its budget in consultation with the government and shall be deemed independent in spending its budget and shall report its expenditure in accordance with the provisions of the laws. (2) In order to better carry out its mandate and for effective implementation of its duties, the Commission, in accordance with the provisions of the laws, can receive funds and technical support from national and international organizations. 31. Members of the Commission shall receive appropriate salaries and benefits based on the provisions of the laws. | Some attempt to make the budget process independent but not approved by parliament. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | YES | 2 | 19. A person fulfilling the following criteria can be appointed as a member of the commission: 1-Have citizenship of Afghanistan; 2-Completed 30 years of age; 3-Have a bachelor’s degree at least; 4-Not sanctioned from practicing civil rights and not convicted due to serious crimes, crimes against humanity, and corruption; 5-Have 5 years of relevant work experience; 6-Have good reputation; 7-Have no political party membership; 8-Do not hold an appointed or elected public office. | |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | YES | 2 | 22(1) The commission has the following powers and functions: 3- Demand documents from information offices of institutions, if required. 33(5) The agency from which the Complaint has been made, shall provide documents and evidence that it has acted based on the provision of this law. 34(1) The Commission has the following authority during a compliant hearing: 1-Inviting both parties and listening to their statements verbally or in writing. 2-Obligating the institutions to provide documents and evidence. 3-Inspect offices of the Public Information Officers and the manner in which documents and information is managed in the intuitions. | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 24 (1) The decision of the Commission is final and shall be implemented following its declaration. (2) Where any institution fails to comply with a decision of the Commission, the Commission may notify the competent authorities in writing. | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 34(2) The Commission can obligate the institutions during the redressal of complaints to provide any information to the applicant based on the provision of the law. In case of delay in the implementation of the provision of the law, the Commission shall make necessary decision. 35(3) In cases of violations mentioned in Clause (1) of this article, which results in material and moral damage to the natural and legal persons should be compensated in accordance with the laws. | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 34(4) If the applicant or institutions are not satisfied with the decision of the Commission, they may refer to a competent court within a maximum of thirty working days. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | 32 (2) Addressing the complaints as outlined in the Clause 1 of this Article shall be free of charge. | No lawyer not specified but clear from the context. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 32(1) (1) If an applicant feels that his/her request for information has not been addressed or is not satisfied with the institution’s treatment, he/she can lodge a complaint to the same institution or the Commission. | Any case where the applicant feels the request has not been addressed or is not satisfied. |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | 33(3) The Commission shall investigate the complaint within a maximum of twenty working days and make a decision. (4) If deemed necessary, the Commission may facilitate participation of the stakeholders in the complaint hearing process. (6) The complaint redressal mechanism and assessment of related documents and evidences shall be established in a separate procedure by the Commission. | |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | Partially | 1 | 33(5) The agency from which the Complaint has been made, shall provide documents and evidence that it has acted based on the provision of this law. | Not a clear reversal of burden but some shift towards the government |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | 34(3) The Commission can obligate the institutions during the redressal of complaint to make necessary decisions in order to improve the affairs of the Public Information Officers, proper management of documents, publication of information and publishing of annual reports. | |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | 35(1) The followings are recognized as violation of this law: 1-Providing such information to the applicant that does not conform to the contents of information request form. 2-Refusal of information to the applicant without justified reasons. 3-Providing such information to the Commission that is contrary to reality. 4-Destroying documents without lawful authority. 5-Not providing requested information within the allocated timeframe. 6-Not observing decisions and procedures of the Commission. 7-Lack of reporting by the Public Information Officer to the Commission within the specified timeframe. (2) In case any violation mentioned in article 26(1) is proved, the Commission shall decide on one of the following punishments considering the circumstances: 1-Admonition; 2-Written warning; 3-Decide to deduct a portion of the salary of the offending officer and advise the relevant institution to take action in accordance with the laws; 4-In case of repetition of the violation, decide the transfer of the officer and advise the relevant institution to take action. (3) In cases of violations mentioned in Clause (1) of this article, which results in material and moral damage to the natural and legal persons should be compensated in accordance with the laws. (4) Institutions shall implement the correctional measures taken by the Commission and report to the Commission about its implementation. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | Not mentioned |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 2 | 36. An individual who discloses information in good faith, if proved so, shall have appropriate legal, administrative and job protection and shall receive necessary support in accordance with the laws. | |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | 7. Institutions shall protect individuals who disclose information related to corruption, mismanagement, failure to provide justice, criminal violation, breach of law, violation of human rights, and serious damage to the safety of the public and the environment. | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | 12(1) To ensure the right of access to information, institutions shall identify and appoint Public Information Officers and other staff with clear terms of reference. (2) Public information officers mentioned in article 12 (1) shall make public the contact details (phone number, email, address, etc.) of Public Information Officer and other relevant staff. (3) Where needed for the proper discharge of his or her duties, the Public Information Officer may seek the assistance of other employees of the institution and all employees shall render all reasonable assistance. | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 22 (1) The commission has the following powers and functions: 7- Promote the culture of access to information in the country through conducting educational programs. 8- Raise public awareness about the activities of the Commission. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | 22 (1) The commission has the following powers and functions: 7- Promote the culture of access to information in the country through conducting educational programs. 8- Raise public awareness about the activities of the Commission. | |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | 15(3) Institutions shall create an information bank (data base) for a better preservation of documents and information as well as to facilitate public access to information. 16(8) Institutions shall categorize and classify information based on the level of confidentiality in accordance with specific procedures. 22 (1) The commission has the following powers and functions: 12- Setting of minimum standards regarding the manner in which institutions are required to manage their information. 38(1) Institutions shall ensure that the information which they hold is properly maintained in accordance with relevant standards and procedures including so as to enable them to comply with their obligations under this law and report to the Commission accordingly. | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | Partially | 1 | 15(1) Institutions are responsible to publish the following information at least once a year: 14- A list of the categories and types of information it holds. | List of categories |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | 38(2) Institutions are required to ensure that their staff receive appropriate training on how to implement this law and inform the Commission of such activities. | |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | Partially | 1 | 17 (1) Public Information officers are obliged to submit an annual report on the implementation of this law to the commission. (2) The format and procedure of the report stipulated in Article 17 (1) shall be established in a separate procedure by the commission. | Until Commission indicates that this shall include statistics on requests, can only get one point. |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | 15(1) Institutions are responsible to publish the following information at least once a year: 16- Annual report outlining the implementation of this law. 22 (1) The commission has the following powers and functions: 6- Present annual report of activities of the Commission to the President and the National assembly and publish such reports. |
