Fiji
Name of law: Information Act, 2018, Act 9 of 2018
First adopted: 2018
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 2018
Last modified: n/a
RTI Rating last updated: n/a
Introduction
This is a law falling into the bottom one-third of all countries on the RTI Rating, so fairly weak. It has limited scope, applying only to residents and citizens and to information created after the law comes into force. The requesting procedures are weak, including by having long time limits and a poor fee structure. This law does not override other laws, there is no sunset clause for exceptions or public interest override and many exceptions are illegitimate or lack a harm test. A key weakness in terms of appeals is that legislation to create the oversight body and set rules for it has yet to be adopted. There are also no sanctions for obstructing access or protections for whistleblowers.| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 4 | 6 |
| 2 | Scope | 16 | 30 |
| 3 | Requesting Procedures | 10 | 30 |
| 4 | Exceptions & Refusal | 10 | 30 |
| 5 | Appeals | 12 | 30 |
| 6 | Sanctions & Protections | 2 | 8 |
| 7 | Promotional Measures | 10 | 16 |
| ∑ = 64 | ∑ = 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 | Article 25. (1) Every person has the right of access to - (a) information held by any public office; and (b) information held by another person and required for the exercise or protection of any legal right. (3) To the extent that it is necessary, a law may limit, or may authorise the limitation of, the rights set out in subsection (1), and may regulate the procedure under which information held by a public office may be made available. Article 150. A written law shall make provision for the exercise by a member of the public of the right to access official information and documents held by the Government and its agencies. | Articles from the Constitution. |
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 | Article 5. Subject to this Act, a person may access any information held by a public agency. 6. (1) Subject to subsection (2), any person who is a natural person and is a citizen or a permanent resident of the State may request the Commission to make available to the person any information held by a public agency. | |
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 | NO | 0 | Article 4. The objectives of this Act are to - (a) give effect to the right of access to information under sections 25 and 150 of the Constitution; (b) recognise the right of a person to access information held by a public agency in accordance with the procedures prescribed in this Act; (c) ensure that a person is informed of the operations of a public agency, including, in particular, the rules and practices followed by the public agency in its dealings with members of the public; and (d) allow a person to make a request to correct or delete personal information held by a public agency in respect of the person to ensure that the information is correct, accurate, complete and not misleading. | Statement of objects, but only refers to 'internal' objects (giving effect to the right of access) rather than external benefits and no statement about 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 | NO | 0 | Article 6. (1) Subject to subsection (2), any person who is a natural person and is a citizen or a permanent resident of the State may request the Commission to make available to the person any information held by a public agency. | Only natural persons who are residents/citizens. |
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 | Partially | 1 | Article 2. “Information” means any material in any form, including a record, report, correspondence, opinion, recommendation, press statement, circular, order, logbook, agreement, sample, model, data or document such as— (a) a map, plan, drawing or photograph; (b) any paper or other material on which there is a mark, figure, symbol or perforation that is capable of being interpreted; (c) any article or material from which a sound, image or writing is capable of being reproduced with or without the aid of any other article or device; or (d) any article on which information has been stored or recorded either mechanically or electronically, provided that the material directly affects a determination or decision made by a public agency in relation to the person making a request under section 6. Article 6. (2) Notwithstanding any other provision in this Act, the information requested by a person under subsection (1) must be information which— (a) directly affects the person making the application; and (b) comes into existence upon or after the commencement of this Act. | Information is defined broadly but then the scope is limited to cases where the information directly affects a decision regarding the requester. Plus the information must come into existence after the Act comes into force. See also 6(4), which limits the scope of "directly affecting" the requester. |
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 | Article 15. If - (a) it appears to a public agency that a request relates to information of a kind that is not contained in a written document held by the public agency; and (b) the public agency may create a written document containing information of that kind by the use of equipment that is usually available to it for retrieving or collating stored information, the public agency must deal with the request as if it were a request for a written document so created and the public agency is deemed to hold such a document. | Not explicit but this amounts to the same thing. |
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 | Partially | 4 | Article 2. “public agency” means— (a) an office created by, or continued in existence under, the Constitution; (b) an office in respect of which the Constitution makes provision; (c) a commission established by, or continued in existence under, the Constitution or any written law; (d) a Government ministry, department, division or unit; (e) a disciplined force; (f) a court or tribunal established by, or continued in existence under, the Constitution or any written law; (g) a statutory authority; (h) a Government company; or (i) an office established by written law, but does not include a public agency that is exempted under section 21 from the provisions of this Act; [...] Article 21. (1) The Minister may, following consultation with the Commission, exempt a public agency from the provisions of this Act by notice in the Gazette and the exemption will take effect on the date prescribed in the notice. (2) The Minister may, following consultation with the Commission, revoke an exemption made under subsection (1) by notice in the Gazette and the revocation will take effect on the date prescribed in the notice. Article 44. Any information held by - (a) the National Archives of Fiji; (b) the Fiji Museum; (c) a library of a public agency; or (d) any other prescribed public agency, but that has been produced by a public agency other than those in paragraphs (a) to (d) are deemed to be held by the other public agency. Article 163(1) [of the Constitution] “disciplined force” means - (a) the Republic of Fiji Military Forces; (b) the Fiji Police Force; or (c) the Fiji Corrections Service; [...] | Covers all bodies created by law or statute or corporations which are 100% owned by the government but not subordinate bodies created in other ways. Also, the Minister may exclude bodies. Finally, the Archives and public museums and libraries are essentially excluded. |
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 | Partially | 2 | Article 2. “public agency” means - (a) an office created by, or continued in existence under, the Constitution; (b) an office in respect of which the Constitution makes provision; (c) a commission established by, or continued in existence under, the Constitution or any written law; (d) a Government ministry, department, division or unit; (e) a disciplined force; (f) a court or tribunal established by, or continued in existence under, the Constitution or any written law; (g) a statutory authority; (h) a Government company; or (i) an office established by written law. | Not clear whether created by the Constitution or law would cover the legislature. Unlike the courts, this is not specifically mentioned. |
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 | Article 2. “public agency” means - (a) an office created by, or continued in existence under, the Constitution; (b) an office in respect of which the Constitution makes provision; (c) a commission established by, or continued in existence under, the Constitution or any written law; (d) a Government ministry, department, division or unit; (e) a disciplined force; (f) a court or tribunal established by, or continued in existence under, the Constitution or any written law; (g) a statutory authority; (h) a Government company; or (i) an office established by written law, | |
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 | Partially | 1 | Article 2. “Government company” means a company where all of the stock or shares in the capital is or are beneficially owned by the Government, whether such shares are held in the name of a Minister, public officer, nominee of the State or otherwise; [...] | Only if 100% government owned but control exists at 50% ownership and often at much lower levels. |
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 | Article 2. “public agency” means - (a) an office created by, or continued in existence under, the Constitution; (b) an office in respect of which the Constitution makes provision; (c) a commission established by, or continued in existence under, the Constitution or any written law; (d) a Government ministry, department, division or unit; (e) a disciplined force; (f) a court or tribunal established by, or continued in existence under, the Constitution or any written law; (g) a statutory authority; (h) a Government company; or (i) an office established by written law, | |
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 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | Article 6(3) A request made under subsection (1) must - (a) be made in the form prescribed by regulations made under this Act; (b) specify the public agency with which the information is held; (c) specify the particulars of the information requested or such other particulars as are necessary for the identification of the information requested; (d) subject to section 12, specify the form preferred by the person making the request for accessing the information; (e) comply with any other requirement of the Commission. | Reasons are not listed among the information to be included in 6(3)(b) and 6(3)(c). The list is reasonably complete so benefit of the doubt given. It would be better, however, if reasons were explicitly not required. |
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 | Article 6(3) A request made under subsection (1) must— (a) be made in the form prescribed by regulations made under this Act; (b) specify the public agency with which the information is held; (c) specify the particulars of the information requested or such other particulars as are necessary for the identification of the information requested; (d) subject to section 12, specify the form preferred by the person making the request for accessing the information; (e) comply with any other requirement of the Commission. | Doesn't require any extraneous material at the moment, subject to what may be set out in the regulations. |
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 | NO | 0 | 6(3) A request made under subsection (1) must— (a) be made in the form prescribed by regulations made under this Act; | Must use the form and there is no reference to the idea of electronic requests. |
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 | Article 12(1) A public agency to which a request has been forwarded by the Commission under section 8 or 10 must - (a) render effective and timely assistance; [...] Article 36(2) The information officer must - [...] (c) assist persons seeking information or the correction or deletion of information under this Act; [...] | Rather general but points given. |
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 | Partially | 1 | Article 13(7) In giving access to information, a public agency must take such measures as reasonably practicable to ensure that persons with disabilities are able to access such information in accordance with the rights of persons with disabilities as prescribed under section 42 of the Constitution. | Covers the disabled but not those who are illiterate. |
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 | NO | 0 | N/A | Not mentioned. |
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 | Partially | 1 | Article 10(1) Notwithstanding section 12, where the Commission forwards a request to a public agency under section 8 or this section and the information to which the request relates is - (a) not held by that public agency but is, to the knowledge of that public agency, held by another public agency (“second public agency”); or (b) reasonably believed by that public agency to be more closely connected with the functions of the second public agency, the public agency to which the request is forwarded must notify the Commission in writing within 10 days from the receipt of the request from the Commission. (2) The Commission must, within 10 days from the receipt of the written notice under subsection (1) - (a) transfer the request to the second public agency; (b) direct the second public agency to make available to the person who made the request, where reasonably practicable, all the particulars of the information specified in the request; and (c) inform the person who made the request that the request has been transferred to the second public agency and that the second public agency has been directed to make the information available to that person. | It is a system of transfers but the time limits add another 20 days onto the process (10 days to notify the Commission and another 10 days to forward to the second agency) and the grounds for transfer ("more closely connected") are too broad. |
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 | Article 13(1) Subject to subsection (2), any information which a public agency is directed under section 8 or 10 to make available to the person who has made the request may be made available in any of the following ways - (a) by giving the person a reasonable opportunity to inspect the information; (b) by giving the person a copy of the information; (c) in the case of information that is an article or material from which sounds or images are capable of being reproduced, by giving the person a copy of the article or material or by making arrangements for the person to hear those sounds or view those images; or (d) in the case of information that is a document where words are recorded in a way in which the words are capable of being reproduced in the form of sound or in which words are contained in the form of shorthand writing or in codified form, by providing the person with a written transcript of the words recorded or contained in the document. (2) A public agency must make the information available in the form preferred by the person who made the request unless to do so would - (a) impair the efficient administration of the public agency; (b) be detrimental to the preservation of the information or, having regard to the physical nature of the information, would otherwise not be appropriate; or (c) involve an infringement of copyright, other than copyright owned by the State or a public agency, subsisting in matter contained in the information. (3) If information cannot be made available in the form preferred by the person who made the request, the public agency - (a) may provide the information in another form as determined by the public agency; and (b) must give the person a written statement of the reason for not making the information available in the form preferred by the person who made the request. (4) If the person who made the request has indicated that access to information be given in a particular form and access in that form is refused but given in another form, the person is not required to pay a charge in respect of the giving of access that is greater than the charge that the person would have been required to pay had access been given in the form preferred by the person who made the request. | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | Article 8. If the Commission accepts the request made under section 6, the Commission must, within 20 days from the receipt of the request - [...] (c) inform the person who made the request that the request has been accepted by the Commission and that the public agency has been directed to make the information available to that person. Article 12(1) A public agency to which a request has been forwarded by the Commission under section 8 or 10 must - [...] (c) provide access to the information, as soon as reasonably practicable and within 20 days from the receipt of the request from the Commission, to the person who made the request under section 6. | Even though the agency needs to provide the information as soon as possible, this is already potentially 20 days after the request was made. |
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 | NO | 0 | Article 7. Subject to this Act, the Commission must, within 10 days from the receipt of the request, determine whether the request is to be accepted or refused. Article 8. If the Commission accepts the request made under section 6, the Commission must, within 20 days from the receipt of the request - [...] (c) inform the person who made the request that the request has been accepted by the Commission and that the public agency has been directed to make the information available to that person. Article 9(2) If a request is refused under subsection (1), the Commission must, within 20 days from the receipt of the request, provide the person who made the request with a written statement of the decision and the reason for the refusal. Article 12(1) A public agency to which a request has been forwarded by the Commission under section 8 or 10 must - [...] (c) provide access to the information, as soon as reasonably practicable and within 20 days from the receipt of the request from the Commission, to the person who made the request under section 6. | 20 + 20 days unless refused. Purpose of s. 7 is not clear since s. 8 consistently refers to the period from receipt of the request. |
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 | NO | 0 | Article 18(1) The Commission may extend the period prescribed in section 12 if - (a) the request is made to access a large quantity of documents, or necessitates a search through a large quantity of documents, and complying with the prescribed period would unreasonably interfere with the operations of the public agency; (b) consultations are necessary to make a determination on the request; or (c) the information cannot be reasonably provided to the person who made the request within the prescribed period. (2) Any extension under subsection (1) must be reasonable having regard to the nature of the circumstances and must be for a further period not exceeding 90 days. (3) The Commission must provide the person who made the request with a written notice of the extension as soon as reasonably practicable after a decision has been made to extend the prescribed period, and such notice must specify the period of the extension and state the reason for the extension. | Notice is required to be given but: a) it is not clear that is within the original time period, even though they must be as soon as possible; b) the grounds for extensions are too broad ("cannot reasonably be provided … within the prescribed period); and c) extensions may be for up to 90 days. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | Article 6(3) A request made under subsection (1) must - [...] (f) be accompanied by such fee as prescribed by regulations made under this Act. | Seems fairly clear that you need to pay to make a request. |
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 | NO | 0 | Article 12(2) Notwithstanding subsection (1), a public agency may impose a charge for the expenses involved in making the requested information available. (3) Pursuant to subsection (2), the public agency must notify the person who made the request of the charge required to be paid and the person must pay such charge in order to access the information. (4) Any charge under subsection (2) must be reasonable and based on - (a) in the case of information contained in documents, the nature and estimated quantity of documents; (b) the estimated expenses involved in making the information available; (c) the estimated time for preparing the information; and (d) in the case of an urgent request under section 11, any expenses incurred pursuant to that urgent request. | Not set centrally, no free pages and not limited to reproduction and delivery costs. |
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 | NO | 0 | N/A | Not mentioned. |
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 | Partially | 1 | n/a | Not mentioned but some benefit of the doubt given since the right is constitutional in nature. |
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 | Partially | 5 | Article 19(1) A public agency may refuse a request if the public agency is satisfied that - [...] (b) the work involved in processing the request would substantially and unreasonably divert the resources of the public agency from its other operations. Article 20. Notwithstanding anything contained in this Act, the following information is exempt from disclosure and any request made under section 6 for such information must be refused by the Commission - (a) information, the disclosure of which would adversely affect the sovereignty, security or scientific or economic interests of the State; (b) information, the disclosure of which would lead to the incitement or commission of an offence; (c) information expressly forbidden to be published by any court of law or tribunal or which would constitute a contempt of court; (d) information, the disclosure of which would cause a breach of the privileges of Parliament or a committee or subcommittee of Parliament; (e) information that is subject to legal professional privilege; (f) information available to a person in the exercise of the person’s fiduciary duty, unless the Commission is satisfied that the disclosure of such information is in the public interest; (g) information received in confidence from a foreign government or an international organisation; (h) information, the disclosure of which would endanger the life or safety of any person or identify the source of information or assistance given in confidence for the purposes of law enforcement or security; (i) information which would impede the process of investigation, apprehension or prosecution of an alleged offender; (j) Cabinet documents, including records of deliberations of meetings or decisions of Cabinet; (k) information which relates to personal information, the disclosure of which has no relationship to or does not affect any public activity or interest, or which would cause the unwarranted invasion of privacy of the person, unless the Commission is satisfied that the disclosure of such information is in the public interest; (l) information which is classified by Cabinet as an official or State secret and certified in writing by the Secretary to Cabinet; (m) information, the disclosure of which would endanger or harm any protected site or the environment; (n) a trade secret, business know-how, commercially sensitive information and proprietary information relating to the intellectual property of a business; and (o) any other information, the disclosure of which, the Commission deems is not in the public interest. | Too much work; scientific or economic interests; privileges of Parliament; classified by Cabinet; not in the public interest. |
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 | NO | 0 | Article 20. Notwithstanding anything contained in this Act, the following information is exempt from disclosure and any request made under section 6 for such information must be refused by the Commission - (a) information, the disclosure of which would adversely affect the sovereignty, security or scientific or economic interests of the State; (b) information, the disclosure of which would lead to the incitement or commission of an offence; (c) information expressly forbidden to be published by any court of law or tribunal or which would constitute a contempt of court; (d) information, the disclosure of which would cause a breach of the privileges of Parliament or a committee or subcommittee of Parliament; (e) information that is subject to legal professional privilege; (f) information available to a person in the exercise of the person’s fiduciary duty, unless the Commission is satisfied that the disclosure of such information is in the public interest; (g) information received in confidence from a foreign government or an international organisation; (h) information, the disclosure of which would endanger the life or safety of any person or identify the source of information or assistance given in confidence for the purposes of law enforcement or security; (i) information which would impede the process of investigation, apprehension or prosecution of an alleged offender; (j) Cabinet documents, including records of deliberations of meetings or decisions of Cabinet; (k) information which relates to personal information, the disclosure of which has no relationship to or does not affect any public activity or interest, or which would cause the unwarranted invasion of privacy of the person, unless the Commission is satisfied that the disclosure of such information is in the public interest; (l) information which is classified by Cabinet as an official or State secret and certified in writing by the Secretary to Cabinet; (m) information, the disclosure of which would endanger or harm any protected site or the environment; (n) a trade secret, business know-how, commercially sensitive information and proprietary information relating to the intellectual property of a business; and (o) any other information, the disclosure of which, the Commission deems is not in the public interest. | Fiduciary duty; received in confidence from other States; Cabinet documents; commercial 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 | Partially | 1 | Article 20. Notwithstanding anything contained in this Act, the following information is exempt from disclosure and any request made under section 6 for such information must be refused by the Commission - [...] (f) information available to a person in the exercise of the person’s fiduciary duty, unless the Commission is satisfied that the disclosure of such information is in the public interest; (k) information which relates to personal information, the disclosure of which has no relationship to or does not affect any public activity or interest, or which would cause the unwarranted invasion of privacy of the person, unless the Commission is satisfied that the disclosure of such information is in the public interest; [...] | Only for two out of 15 exceptions. |
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 | NO | 0 | N/A | Not mentioned. |
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 | NO | 0 | N/A | Not mentioned. |
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 | Article 16. If - (a) a request is made for access to a document containing any exempt matter; (b) it is reasonably practicable to give access to a copy of the document from which the exempt matter has been deleted; and (c) it appears to the public agency concerned, whether from the particulars of the information specified in the request or after consultation with the person who made the request, that the person would wish to be given access to such a copy, the public agency must give access to the person accordingly. | Doesn't appear to allow discretion to refuse but (c) does not appear to be necessary. |
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 | Partially | 1 | Article 9(2) If a request is refused under subsection (1), the Commission must, within 20 days from the receipt of the request, provide the person who made the request with a written statement of the decision and the reason for the refusal. 19(3) If a public agency refuses a request under subsection (1) or (2), the public agency must provide the Commission and the person who made the request with a written statement of the decision and the reason for the decision. | Only information about refusal, not the right of appeal. |
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 | NO | 0 | Article 36(2) The information officer must - [...] (d) receive complaints under this Act. | Although the information officer receives complaints, there does not appear to be any internal appeal. |
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 | Partially | 1 | Article 22(1) If a public agency fails or refuses to provide any person with the information which the public agency has been directed by the Commission to make available to that person, that person may lodge a complaint with the Commission. | Only one point given because the Commission has already been involved in the initial decision, so this is not really a proper second review. Also, the Commission needs to be created by another law, which has not yet been passed. |
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 | YES | 2 | Article 121(2) The Commission shall consist of a chairperson and 2 other members appointed by the President, on the advice of the Judicial Services Commission following consultation by it with the Attorney-General. [...[ (4) The members of the Commission shall be appointed for a term of 3 years and shall be eligible for re-appointment. [...] (6) The members of the Commission may be removed from office for inability to perform the functions of office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and may not otherwise be removed. (7) The procedure for removal of the members of the Commission from office shall be the same as the procedure for removal of a judicial officer under section 112. [...] (10) In the performance of its functions or the exercise of its authority and powers, the Commission shall be independent and shall not be subject to the direction or control of any person or authority, except by a court of law or as otherwise prescribed by written law. | Basically the same protections as apply to judges. Provisions from the Constitution. |
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 | YES | 2 | Article 121(11) The members of the Commission shall be entitled to such remuneration as determined by the President acting on the advice of the Judicial Services Commission following consultation by the Judicial Services Commission with the Attorney-General, and any such remuneration must not be varied to their disadvantage, except as part of an overall austerity reduction similarly applicable to all officers of the State. [...] (13) The Commission shall provide regular updates and advice to Parliament on any matter relating to its functions and responsibilities. [...] (16) The salaries, benefits and allowances payable to any person employed in the Commission are a charge on the Consolidated Fund. (17) Parliament shall ensure that adequate funding and resources are made available to the Commission, to enable it to independently and effectively exercise its powers and perform its functions and duties. (18) The Commission shall have control of its own budget and finances, as approved by Parliament. | Not entirely clear. Salaries come from the Consolidated Fund and are set by the President with the advice of the judicial body. The budget is voted by parliament. Body also reports to parliament. Provisions from the Constitution. |
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 | Partially | 1 | Article 121(3) The chairperson of the Commission must be a person who is, or is qualified to be appointed as a Judge. | Protections such as apply to judges for the Chair but other members are not mentioned. Provisions from the Constitution. |
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 | NO | 0 | Article 121(8) The authority, functions and responsibilities of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission. (9) A written law shall provide the Commission with the jurisdiction, authority and powers to receive and investigate complaints against permanent secretaries and all persons holding a public office. | Provisions from the Constitution. The law providing for this body has not yet been adopted. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | 22.—(1) If a public agency fails or refuses to provide any person with the information which the public agency has been directed by the Commission to make available to that person, that person may lodge a complaint with the Commission. (2) The Commission, upon receipt of a complaint under subsection (1), may require the public agency to provide a written explanation for the failure or the refusal to provide the information. (3) A public agency that is required by the Commission under subsection (2) to provide a written explanation must provide the written explanation to the Commission within 10 days from the receipt of the requirement from the Commission to provide the written explanation. 23. Subject to section 19, upon receipt of the written explanation from a public agency under section 22, the Commission may undertake such steps as the Commission deems necessary, including holding meetings with the public agency and the person who made the request for the information, to facilitate the access to the information which has been requested by the person. 24.—(1) If the Commission, after receipt of the written explanation from a public agency under section 22 and after undertaking such steps as necessary to facilitate access to the information, is satisfied that the public agency has failed or refused to provide access to the information contrary to this Act, the Commission may make an application to the High Court for an order requiring the public agency to provide access to the information. (2) The High Court must, upon receipt of an application from the Commission under subsection (1), make a determination on the application within 30 days from the date of the application. | Can only facilitate meetings between the agency and the requester and then appeal to the High Court. |
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 | NO | 0 | Article 121(8) The authority, functions and responsibilities of the Commission shall be prescribed by written law, and a written law may make further provisions for the Commission. (9) A written law shall provide the Commission with the jurisdiction, authority and powers to receive and investigate complaints against permanent secretaries and all persons holding a public office. | Provisions from the Constitution. The law providing for this body does not appear to have been adopted yet. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Article 25(1) Any person who is aggrieved by a decision of the Commission under this Act has the right to appeal that decision to the High Court on a question of law. (2) The High Court, upon receipt of an appeal under subsection (1), must make a determination on the appeal within 30 days from the date of the appeal. | |
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 | Partially | 1 | N/A | Not mentioned but some benefit of doubt given. |
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 | Partially | 2 | 22(1) If a public agency fails or refuses to provide any person with the information which the public agency has been directed by the Commission to make available to that person, that person may lodge a complaint with the Commission. 25(1) Any person who is aggrieved by a decision of the Commission under this Act has the right to appeal that decision to the High Court on a question of law. | Only for refusals to provide information but a broader right to appeal against any decision of the Commission, which is a key original decision-maker. |
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 | Partially | 1 | Article 22(2) The Commission, upon receipt of a complaint under subsection (1), may require the public agency to provide a written explanation for the failure or the refusal to provide the information. (3) A public agency that is required by the Commission under subsection (2) to provide a written explanation must provide the written explanation to the Commission within 10 days from the receipt of the requirement from the Commission to provide the written explanation. Article 23. Subject to section 19, upon receipt of the written explanation from a public agency under section 22, the Commission may undertake such steps as the Commission deems necessary, including holding meetings with the public agency and the person who made the request for the information, to facilitate the access to the information which has been requested by the person. Article 24(1) If the Commission, after receipt of the written explanation from a public agency under section 22 and after undertaking such steps as necessary to facilitate access to the information, is satisfied that the public agency has failed or refused to provide access to the information contrary to this Act, the Commission may make an application to the High Court for an order requiring the public agency to provide access to the information. (2) The High Court must, upon receipt of an application from the Commission under subsection (1), make a determination on the application within 30 days from the date of the application. Article 25(2) The High Court, upon receipt of an appeal under subsection (1), must make a determination on the appeal within 30 days from the date of the appeal. | Not very clear but at least time limits include court cases. |
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 | NO | 0 | N/A | Not mentioned. |
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 | NO | 0 | N/A | Not mentioned. |
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 | NO | 0 | N/A | Not mentioned. |
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 | Article 45(1) If access to information is given pursuant to this Act, and the person providing access to the information believes in good faith that this Act permits or requires the access to be given - (a) no action for defamation or breach of confidence lies against - (i) the Commission; (ii) the public agency; (iii) an employee or officer of the public agency or the information officer of the public agency; or (iv) a person acting under the direction of the Commission, the public agency or information officer of the public agency, by reason of the giving of access to the information; and (b) no action for defamation or breach of confidence in respect of any publication involved in, or resulting from, the giving of access lies against the producer of the information or any other person by reason of the producer or other person having supplied the information to the public agency. (2) The giving of access to information pursuant to this Act is not to be taken to constitute, for the purposes of the law relating to defamation or breach of confidence, an authorization or approval of the publication of the information or its contents by the person to whom access is given. Article 46. If access to a document is given pursuant to this Act, and the person by whom the access is made believes in good faith that this Act permits or requires the access to be given, neither the person who provides access to the information nor any other person concerned in giving access to the information commits an offence merely as a result of the giving of access to the information. Article 47. No matter or thing done by - (a) the Commission; (b) a public agency; or (c) any person acting on behalf, of or under the direction, of the Commission or a public agency, will, if the matter or thing was done in good faith for the purposes of this Act, subject the Commission, the head of the public agency or any person so acting, personally to any action, liability, claim or demand. | Also heavy penalties for staff of the Commission who disclose information pursuant to s. 39. |
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 | NO | 0 | N/A | Fiji does not have a law (see https://www.transparency.org.nz/blog/world-whistleblowers-day-where-we-are-at-in-the-pacific). Tax and excise and Fiji Roads Authority have whistleblower policies but they seem to be the only such agencies and it is not clear how effective these policies are. |
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 | Article 36(1) A public agency must, within 20 days from the application of this Act to that public agency, designate an employee of that public agency to be the information officer of that public agency to facilitate and process requests for access to information and correction and deletion of information. | |
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 | Article 38(2) In addition to the powers and functions prescribed in this Act, the Commission is also responsible for - [...] | Set of promotional measures are vested in 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 | Article 38(2) In addition to the powers and functions prescribed in this Act, the Commission is also responsible for - [...] (e) promoting public awareness in relation to the application of this Act; and (f) disseminating information to the public in relation to the framework and procedures for the exercise of a person’s rights under this Act, including publishing material in relation to exempt matter. | |
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 | Partially | 1 | Article 36(2) The information officer must - (a) promote, within the respective public agency, best practices in relation to— (iii) record management and the archiving and disposal of records. Article 38(2) In addition to the powers and functions prescribed in this Act, the Commission is also responsible for - [...] (b) publishing guidelines to public agencies on information and records management, including the manner in which access to information can be made more efficient by public agencies; (c) publishing guidelines on the creation, management and disposal of records and, subject to the availability of resources, the digitising of records and use of the internet as far as possible to publish information by public agencies [...] | Not really a proper system but something at least. |
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 | Article 35. A public agency must, within 12 months from the application of this Act to that public agency, ensure that the following information is available upon request to any member of the public - [...] (f) the types of documents held by the public agency, including the categories of documents that are available - (i) for inspection only; (ii) for purchase; or (iii) free of charge [...] | Really weak because only a right to request but one point given. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | Partially | 1 | Article 38(2) In addition to the powers and functions prescribed in this Act, the Commission is also responsible for - [...] (d) training information officers and other employees of public agencies on the right to information and the effective implementation of this Act [...] | Commission may provide training. |
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 | NO | 0 | N/A | Not mentioned. |
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 | Partially | 1 | Article 40. The annual report published by the Commission must - (a) include a report on the exercise of the Commission’s functions under this Act during the year [...] | Not really a consolidated report since just about the Commission but something at least. |
