Seychelles
Name of law: Access to Information Act, 2018
First adopted: 2018
Last modified: n/a
RTI Rating last updated: 2018-09
First adopted: 2018
Last modified: n/a
RTI Rating last updated: 2018-09
Introduction
Seychellean constitutional law strongly recognizes the right to information and their legal framework mostly supports that sturdy foundation. First and foremost, the law has a very broad scope that specifically applies to all executive, legislative, and judicial functions, including private entities financed by the state. Additionally, the RTI law performs well when assessed against international standards governing the appeals process, as the legislation provides both external and internal reconsiderations, though there is no provision expressly permitting judicial appeals. Areas for improvement include a reduction of fees for initial requests, a strengthening of the mandatory public interest override for exceptions, and a broader trump provision that overrides all other ordinary laws in Seychelles.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 5 | 6 |
| 2 | Scope | 25 | 30 |
| 3 | Requesting Procedures | 17 | 30 |
| 4 | Exceptions & Refusal | 21 | 30 |
| 5 | Appeals | 24 | 30 |
| 6 | Sanctions & Protections | 5 | 8 |
| 7 | Promotional Measures | 11 | 16 |
| ∑ = 108 | ∑ = 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 | 28. (1) The State recognises the right of access of every person to information relating to that person and held by a public authority which is performing a governmental function and the right to have the information rectified or otherwise amended, if inaccurate. (2) The right of access to information contained in clause (1) shall be subject to such limitations and procedures as may be prescribed by law and are necessary in democratic society including− (a) for the protection of national security; (b) for the prevention and detection of crime and the enforcement of law; (c) for the compliance with an order of a court or in accordance with a legal privilege; (d) for the protection of the privacy or rights or freedoms of others; (3) The State undertakes to take appropriate measures to ensure that information collected in respect of any person for a particular purpose is used only for that purpose except where a law necessary in a democratic society or an order of a court authorises otherwise. (4) The State recognises the right of access by the public to information held by a public authority performing a governmental function subject to limitations contained in clause (2) and any law necessary in a democratic society. | |
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 | 8. Subject to this Act, every person has a right to access to information from a public body. | |
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 | Preamble: AN ACT to foster good governance through enhancing transparency, accountability, integrity in public service and administration, participation of persons in public affairs, including exposing corruption. to recognise the right of access to information envisaged in Article 28 of the Constitution and for mailers connected therewith and incidental thereto. | Statement of principles 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 | Partially | 1 | 8. Subject to this Act, every person has a right to access to information from a public body. | Refers to every person but not clear if that includes legal persons |
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 | 2 | 2. In this Act, unless the context otherwise requires - ... “information” includes any original or copy of documentary material irrespective of its physical characteristics, such as records, correspondence, fact, opinion, advice, memorandum, data, statistic, hook, drawing, plan, map. diagram, photograph, audio or visual record, and any other tangible or intangible material, regardless of the form or medium in which it is held in the possession or under the control of the public body; 9(1) A person who wishes to obtain access to access information under this Act may make a request in writing to the Information Officer of the concerned public body: Provided that no such request shall be made if any other written law provides for getting such information. | Broad definition of information but then s. 9 seems to claw that back if another law provides for access |
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 | Partially | 1 | 2. In this Act, unless the context otherwise requires - ... “information” includes any original or copy of documentary material irrespective of its physical characteristics, such as records, correspondence, fact, opinion, advice, memorandum, data, statistic, hook, drawing, plan, map. diagram, photograph, audio or visual record, and any other tangible or intangible material, regardless of the form or medium in which it is held in the possession or under the control of the public body; 8. Subject to this Act, every person has a right to access to information from a public body. | Not clear from the definition of information or right to request |
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 | Schedule. Public body for the purpose of this Act I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Any legal or constitutional body and any other body owned, controlled or financed by them |
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 | Schedule. Public body for the purpose of this Ac.t I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Specifically refers to legislative functions |
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 | Schedule. Public body for the purpose of this Act I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Specifically refers to judicial functions |
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 | Schedule. Public body for the purpose of this Act I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Owned, controlled or financed by public bodies |
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 | Schedule. Public body for the purpose of this Act I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Legal or constitutional bodies |
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 | Partially | 1 | Schedule. Public body for the purpose of this Act I. Any authority or body or institution performing government functions, legislative functions or judicial functions and established or constituted.— (a) by or under the Constitution; or (b) any written law, 2, A body owned, controlled or financed by the government. 3. Non-governmental organisation financed directly or indirectly by funds provided by the government. | Financed but not public functions. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 9(4) Subject to subsections (5)(b) and (c), a requester shall not be required to provide a justification or reason for requesting any information. | |
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 | Partially | 1 | 9(5) A request under subsection (1) shall— (a) provide such details concerning the information requested as are reasonably necessary to enable the Information Officer to identify the information; (b) if the requester believes that the information is necessary to safeguard the life or liberty of a person, include a statement to that effect, including the basis for that belief; (c) state the nature of the form in which the requester prefers access; and (d) if the request is made on behalf of another person, include an authorisation from such person. | Only a description of the information is required but it is not clear whether other details may be asked. |
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 | 9(1) A person who wishes to obtain access to access information under this Act may make a request in writing to the Information Officer of the concerned public body: Provided that no such request shall be made if any other written law provides for getting such information. | Need to use the form and no reference to different ways of submitting. |
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 | 10(1) Where a person—(a) wishes to make a request to an information holder; or (b) has made a request to an information holder that does not comply with the requirements of this Act, the Information Officer shall take all necessary’ steps to assist the person, free of charge, to make the request in a manner that complies with this Act. | |
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 | 10(2) Where a person with a disability wishes to make a request, an Information Officer shall take all necessary steps to assist the person to make the request in a manner that meets their needs. | Refers to disabilities but not illiteracy. |
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 | 9(3) On receipt of a request, an Information Officer shall immediately provide a written acknowledgement of the request to the requester. | |
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 | 13. (1) Where a request is made to a public body requesting information which the public body does not hold and— (a) which the public body knows or reasonably consider that it is held by another public body; or (b) the subject matter of which is more closely connected with the functions of another public body, the body to which such request is made shall transfer the request, or such part of it as may be appropriate, to that other public body (2) A public body that transfers a request in accordance with subsection (1) shall— (a) make the transfer as soon as practicable but in any event within five days from the date of receipt of the request; and (b) immediately notify the requester of the transfer in writing. (3) A public body that receives a transferred request shall immediately notify the requester of the receipt in writing. (4) Where a request is transferred to another public body in accordance with subsection (I), the request is deemed to have been— (a) made to the public body to which it was transferred; and (b) received by that public body on the day the body to which it was originally made received it. | This seems to allow for transfers where the subject matter is "more closely connected with the functions of another public body". However, the request is deemed to be received at the time of the original request, which is positive. |
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 | 17. (1) Access to information shall be given to a requester in one or more of the following forms— (a) a reasonable opportunity to inspect the information, (b) a copy of the information, (c) in the case of information that is an article or thing from which sounds or visual images are capable of being reproduced, tile making of arrangements for the person to hear, view, record or copy those sounds on visual images, (d) in the case of information by which words are recorded in a manner in which they 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, provision by the information holder of a written transcript, (e) in the case of information which is held on a computer, or in electronic or machine readable form, and from which the information holder concerned is capable of producing a printed copy of the information or part of it, by supplying such a copy; or (f) in the case of information available or capable of being made available in computer readable form, by supplying a copy in that form (2) Subject to subsection (4), where the requester has requested access to information in a particular form, access shall be given in that form (3) A requester may amend their preferred form of access on receipt of notice of the reproduction fee or transcription fees payable if access is granted in the form initially requested (4) If giving access to information in the form requested by the requester is likely to (a) unreasonably interfere with the operations of the information holder; (b) be detrimental to the preservation of the information; or (c) having regard to the physical nature of the information, access in the requested form is not be appropriate, access in that form may be refused if access is given in another form authorised under this Act. (5) Where a person requests access to information in a particular form and for a reason specified in subsection (4) access in that form is refused but access is given in another form, the reproduction fee charged may not exceed what would have been charged if that requester had been given access in the form requested. (6) If a requester with a disability is prevented by that disability from reading, viewing or listening to the information concerned in the form in which it is held by the information holder; the Information Officer shall, if that requester so requests, take reasonable steps to make the information available in a form in which it is capable of being read, viewed or heard by the requester. 18. Information shall be provided to a requester in the national language in which it is kept. | |
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 | 11 . (1) Subject to subsection (2), the Information Officer to whom a request is made under section 9 shall, as soon as reasonably possible, but in any event within 21 days after the request is submitted— (a) determine whether to grant the request; (b) notify the requester of the decision in writing; and (c) subject to subsection (7), if the request is granted, subject to the payment of any applicable reproduction fee or transcription fee, give the requester access to the information. | |
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 | Partially | 1 | 11 . (1) Subject to subsection (2), the Information Officer to whom a request is made under section 9 shall, as soon as reasonably possible, but in any event within 21 days after the request is submitted— (a) determine whether to grant the request; (b) notify the requester of the decision in writing; and (c) subject to subsection (7), if the request is granted, subject to the payment of any applicable reproduction fee or transcription fee, give the requester access to the information. 15. (1) An Information Officer who receives a request for information may defer the provision of access to the information if (a) the information has been prepared for presentation to National Assembly, but only until the expiration of five sitting days of the National Assembly; or (b) the information constitutes a report or part thereof that has been prepared for the purpose of reporting to an official body or a person acting in their capacity as an officer of the state, but only until the report has been presented or made available to that body or person or upon the expiration of 35 days from the dale of the request, whichever is earlier. (2) If an Information Officer determines to defer access to information under subsection (1), the Information Officer shall notify the requester in writing — (a) of the decision as soon as possible but not later than 21 days after receiving the request; (b) of the reason for the decision, including the provisions of this Act relied on;(c) of the likely period for which access is to be deferred; and (d) that the requester may, within 14 days of receiving notice, make written representations to the Information Officer regarding why the information is required before such presentation. (3) If a requester makes a representation in terms of subsection (2)(d), the Information Officer, after due consideration of those representations, shall, as soon as reasonably possible but in any event within five days, grant the request for access if there are reasonable grounds for believing that the requester will suffer substantial prejudice if access to the information is deferred for the likely period referred to in subsection (2)(c). | 21 days (not clear if working or calendar). S. 15 provides for delays in certain circumstances. |
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 | 12. (1) Subject to subsection (2), the Information Officer to whom a request is made may extend the period to respond to a request in section 11(1) for a period of not more than 14 days if— (a) the request is for a large amount of information or requires a search through a large amount of information and meeting the original time limit would unreasonably interfere with the activities of the information holder concerned; or (b) consultations are necessary to comply with the request that cannot be reasonably completed within 2l days. (2) If any part of the information requested can be considered by the Information Officer within the time period specified under section 11(1), it shall be reviewed and a response provided to the requester in accordance with that section. - (3) If a period to respond to a request is extended in terms of subsection (I), the Information Officer shall, after the decision to extend time has been taken by him or her, but in any event within 21 days after the request is received, notify the requester in writing of that extension. (4) The notice in terms of subsection (3) shall state (a) the period of the extension; (b) reasons for the extension, based on the provisions of this Act; and (c) that the requester may apply for a review of the decision in accordance with section 34. | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | 9(2) A request under subsection (1) shall be accompanied by such fee as may be prescribed. | Need to pay just 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 | Partially | 1 | 19. (1) A requester is not required to pay any fee - (a) in relation to time spent by an information holder searching for the information requested; or (b) in relation to time spent by the information holder examining the information to determine whether it contains exempt information or deleting exempt information from a document. (2) An information holder may charge the requester a reproduction fee as may be prescribed. . (3) Where a request is made that a written transcription be produced of any information provided to the requester, the information holder may recover the costs of such transcription at such rate as maybe prescribed from the requester. 74(2) Without prejudice to the generality of subsection (1), the regulations made may provide for— (a) term of office, salary and allowances of the Chief Information Commissioner, Information Commissioner and Chief Executive Officer, (b) fee for request for information and the manner of payment, (c) fee for reproduction or transcription of information and the manner of payment (d); manner of publication under the Act. | No fee generally for time but there is a fee for transcription; the Minister may regulate fees. |
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 | 3(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Oaths Act (Cap’l 53). 32(2) An Information Officer may refuse a request in cases where any written law other than this Act prowdes for giving the information requested for | Only refers to overriding the Official Oaths Act; s. 32(2) says "may refuse" but we presume this is a mistake and it means "may not refuse". |
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 | 21. (1) Subject to subsection (2), an Information Officer may refuse a request for information if its release would involve the unreasonable disclosure of personal information about a natural third party, including a deceased individual. (2) A request shall not be refused in terms of subsection (l) where- (a) the third party does not make a representation under section 33(3) stating why access to the information should not be granted; (b) the third party consents to the discloure; (c) the third party has been deceased for more than 10 years; (d) the information is in the public domain; (e) the information relates to the physical or mental well-being of an individual who is under the care of the requester and who is (i) under the age of l8 years; or (ii) incapable of understanding the nature of the request, and giving access would be in the individual’s interests; (f) the information is about a deceased individual and the requester is - (i) the individual’s next of kin or legal representative; (ii) making the request with the written consent of the individuals next of kin or legal representative; (iii) the executor of the deceased’s estate; or (iv) the trustee of a trust which can benefit from the deceased individual’s estate; (g) the information relates to the position or functions of an individual who is or was an official of the information holder or any other public body; (h) the information was given to the information holder by the individual to whom it relates and the individual was informed by or on behalf of the information holder, before it was given, that the information belongs to a class of information that would or might be made available to the public. 22.(1) Subject to subsection (2), an Information Officer may refuse a request for information if it contains - (a) trade secrets of the information holder or a third party; or (b) information about the information holder or a third party that would substantially prejudice a legitimate commercial or financial interest of the information holder or third party (2) A request may not be refused in terms of subsection (1) where— (a) the disclosure of the information would facilitate accountability and transparency of decisions taken by the information holder; (b) the information relates to the expenditure of public funds; (c) the disclosure of the information would reveal misconduct or deception; (d) the third party consents to the disclosure: or (e) the information is in the public domain. 23. An Information Officer may refuse a request for information where the release of the information is likely to endanger the life, health or safety of an individual. 24.(l) An Information Officer may refuse to grant access to information if such access would cause substantial prejudice to the security or defence of the state. (2) For the purpose of this section, security or defence of the state means— (a) military tactics or strategy or military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention, suppression, or curtailment of subversive or hostile activities; (b) intelligence relating to - (i) the defence of the state; or (ii) the detection, prevention, suppression or curtailment of subversive or hostile activities; (c) methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (b); (d) the identity of a confidential source; or (e) the quantity, characteristics, capabilities, vulnerabilities or deployment of anything being designed, developed, produced or considered for use as weapons or such other equipment, excluding nuclear weapons. (3) For the purpose of this section, subversive or hostile activities means (a) an attack against the state by a foreign element; (b) acts of sabotage or terrorism aimed at the people of the state or a strategic asset of the state, whether inside or outside the state; or (c) a foreign or hostile intelligence operation. 25. An Information Officer may refuse to grant access to information (a) supplied by or on behalf of the state to another state or an international organisation in terms of an international agreement with that state or organisation which requires the information to be held in confidence; (b) required to be held in confidence by international law; (c) on the positions adopted or to be adopted by the state, another state or an international organisation for the purpose of present or future international negotiations; or (d) that constitutes diplomatic correspondence exchanges with another state or with an international organisation or official correspondence exchanges with diplomatic missions or consular posts of the country if the release of the information would cause substantial prejudice to the international relations of the state. 26. An Information Officer may refuse to grant access to information if the disclosure of such information would cause serious prejudice to the economy of the state by disclosing prematurely decisions to change or continue economic or financial policy relating to - (a) exchange rates; (b) the regulation of banking or credit; (c) taxation; (d) the stability, control and adjustment of prices of goods and services, rents and other costs and rates of wages, salaries and other income; or (e) the entering into of overseas trade agreements. - 27. An Information Officer may refuse to grant access to information, if such access would cause prejudice to (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders; (c) the administration of justice; (d) the assessment or collection of any tax or duty; (e) endanger the security and life of an informant relating to a crime or investigation 28. An Information Officer may refuse to grant access to information if it— (a) consists of confidential communication between a medical practitioner and his or her patient; (b) consists of confidential communication between a lawyer and his or her client, (c) consists of confidential communication between a journalist and his or her source; or - (d) would otherwise be privileged from production in legal proceedings, unless the patient, client, source or person, as the case may be, entitled to the privilege consents to the release or has waived the privilege. 29(1) An Information Officer may refuse a request for information relating to an academic or professional examination or recruitment or selection process prior to the completion of that examination or recruitment or selection process if the release of the information is likely to jeopardise the integrity of that examination or recruitment or selection process. (2) Information referred to under subsection (1) shall be released on request after the academic or professional examination or recruitment or selection process has been completed. 30. An Information Officer may refuse a request for information relating to a proposal submitted to the Cabinet for consideration and minutes and decisions of the Cabinet unless authorised by the Cabinet Secretary for such release. | |
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 | Partially | 3 | 21. (1) Subject to subsection (2), an Information Officer may refuse a request for information if its release would involve the unreasonable disclosure of personal information about a natural third party, including a deceased individual. (2) A request shall not be refused in terms of subsection (l) where- (a) the third party does not make a representation under section 33(3) stating why access to the information should not be granted; (b) the third party consents to the discloure; (c) the third party has been deceased for more than 10 years; (d) the information is in the public domain; (e) the information relates to the physical or mental well-being of an individual who is under the care of the requester and who is (i) under the age of l8 years; or (ii) incapable of understanding the nature of the request, and giving access would be in the individual’s interests; (f) the information is about a deceased individual and the requester is - (i) the individual’s next of kin or legal representative; (ii) making the request with the written consent of the individuals next of kin or legal representative; (iii) the executor of the deceased’s estate; or (iv) the trustee of a trust which can benefit from the deceased individual’s estate; (g) the information relates to the position or functions of an individual who is or was an official of the information holder or any other public body; (h) the information was given to the information holder by the individual to whom it relates and the individual was informed by or on behalf of the information holder, before it was given, that the information belongs to a class of information that would or might be made available to the public. 22.(1) Subject to subsection (2), an Information Officer may refuse a request for information if it contains - (a) trade secrets of the information holder or a third party; or (b) information about the information holder or a third party that would substantially prejudice a legitimate commercial or financial interest of the information holder or third party (2) A request may not be refused in terms of subsection (1) where— (a) the disclosure of the information would facilitate accountability and transparency of decisions taken by the information holder; (b) the information relates to the expenditure of public funds; (c) the disclosure of the information would reveal misconduct or deception; (d) the third party consents to the disclosure: or (e) the information is in the public domain. 23. An Information Officer may refuse a request for information where the release of the information is likely to endanger the life, health or safety of an individual. 24.(l) An Information Officer may refuse to grant access to information if such access would cause substantial prejudice to the security or defence of the state. (2) For the purpose of this section, security or defence of the state means— (a) military tactics or strategy or military exercises or operations undertaken in preparation for hostilities or in connection with the detection, prevention, suppression, or curtailment of subversive or hostile activities; (b) intelligence relating to - (i) the defence of the state; or (ii) the detection, prevention, suppression or curtailment of subversive or hostile activities; (c) methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (b); (d) the identity of a confidential source; or (e) the quantity, characteristics, capabilities, vulnerabilities or deployment of anything being designed, developed, produced or considered for use as weapons or such other equipment, excluding nuclear weapons. (3) For the purpose of this section, subversive or hostile activities means (a) an attack against the state by a foreign element; (b) acts of sabotage or terrorism aimed at the people of the state or a strategic asset of the state, whether inside or outside the state; or (c) a foreign or hostile intelligence operation. 25. An Information Officer may refuse to grant access to information (a) supplied by or on behalf of the state to another state or an international organisation in terms of an international agreement with that state or organisation which requires the information to be held in confidence; (b) required to be held in confidence by international law; (c) on the positions adopted or to be adopted by the state, another state or an international organisation for the purpose of present or future international negotiations; or (d) that constitutes diplomatic correspondence exchanges with another state or with an international organisation or official correspondence exchanges with diplomatic missions or consular posts of the country if the release of the information would cause substantial prejudice to the international relations of the state. 26. An Information Officer may refuse to grant access to information if the disclosure of such information would cause serious prejudice to the economy of the state by disclosing prematurely decisions to change or continue economic or financial policy relating to - (a) exchange rates; (b) the regulation of banking or credit; (c) taxation; (d) the stability, control and adjustment of prices of goods and services, rents and other costs and rates of wages, salaries and other income; or (e) the entering into of overseas trade agreements. - 27. An Information Officer may refuse to grant access to information, if such access would cause prejudice to (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders; (c) the administration of justice; (d) the assessment or collection of any tax or duty; (e) endanger the security and life of an informant relating to a crime or investigation 28. An Information Officer may refuse to grant access to information if it— (a) consists of confidential communication between a medical practitioner and his or her patient; (b) consists of confidential communication between a lawyer and his or her client, (c) consists of confidential communication between a journalist and his or her source; or - (d) would otherwise be privileged from production in legal proceedings, unless the patient, client, source or person, as the case may be, entitled to the privilege consents to the release or has waived the privilege. 29(1) An Information Officer may refuse a request for information relating to an academic or professional examination or recruitment or selection process prior to the completion of that examination or recruitment or selection process if the release of the information is likely to jeopardise the integrity of that examination or recruitment or selection process. (2) Information referred to under subsection (1) shall be released on request after the academic or professional examination or recruitment or selection process has been completed. 30. An Information Officer may refuse a request for information relating to a proposal submitted to the Cabinet for consideration and minutes and decisions of the Cabinet unless authorised by the Cabinet Secretary for such release. | s. 30, proposal submitted to Cabinet. |
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 | NO | 1 | 22(2) A request may not be refused in terms of subsection (1) where— (a) the disclosure of the information would facilitate accountability and transparency of decisions taken by the information holder; (b) the information relates to the expenditure of public funds; (c) the disclosure of the information would reveal misconduct or deception; (d) the third party consents to the disclosure: or (e) the information is in the public domain. | Very limited public interest override |
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 | YES | 2 | 33(1) If an Information Officer is considering a request for access to personal information of a natural third party or commercial or confidential information of a third party, the Information Officer shall take reasonable steps to inform the third party to whom or which the information relates or, where the third party is deceased, the next of kin or legal representative of the third party, in writing of the request as soon as reasonably possible, but in any event within eight days after the request is received. (2) Subject to subsection (7), when informing the third party under subsection (1), the Information Officer shall include in the notice— (a) the nature of the request and the content of the information; (b) that the third party may consent to the release of the information or make a representation as to why access to the information should not be granted in accordance with subsection (3); (c) that if the third party does not make a representation as to why access to the information should not be granted, access will be given; (d) that the Information Officer may give access after considering the representation under subsection (3) on merits; and (e) that if the Information Officer determines to release the information, the third party may apply for review under section 34. (3) Subject to subsection (8), within 10 days of being informed of a request under subsection (1), a third party may— (a) inform the Information Officer in writing that he or she consents to the release of the information to the requester; or (b) make a representation to the Information Officer in writing stating why the request for access to the information should not be granted. (4) Where a third party does not provide a response under subsection (3) within 10 days of receipt of the intimation or cannot be located after reasonable steps have been taken to do so, the Information Officer may assume that the third party does not object to the information being granted to the requester. (5) On determining whether to grant the requester access to the personal or commercial or confidential information of the third party, the Information Officer shall notify the third party in writing of the decision as soon as possible, but in any event within three days after the decision. (6) If the Information Officer has granted the request for access in circumstances where the third party objected to the granting of access, the notice referred to in subsection (5) shall state (a) the reasons for granting the request; (b) that the third party may apply for a review of the decision under section 34 within 10 days of receipt of the notice; and (c) that the requester will be granted access to the information unless an appeal is lodged within the 10-day period. (7) If the Information Officer is considering a request which the Information Officer shall respond to within 48 hours under section 11(2) and that information contains personal information of a natural third patty or commercial or confidential information of a third party, the Information Officer shall take reasonable steps to inform the third party to whom or which the record relates, in writing, of (a) the nature of the request and the content of the information; (b) the name of the requester; and (c) whether the Information Officer released the information to the requester. (8) Where an Information Officer shall respond to a request within 48 hours under section 11(2), a third party shall not have the right to make a representation to the Information Officer stating why the request should not be granted. | |
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 | 31(1) Where a portion of a record or document containing requested information is exempt from release under this Part, the exempt portion of the information shall be severed or redacted from the record or document and access to the remainder of the information shall be granted to the requester. (2) Where an Information Officer severs or redacts any portion of a record or document, the Information Officer shall indicate the length or amount of information severed or redacted in the response to the requester. | |
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 | 11(8) If the request for information is refused, the notice referred to in subsections (1) and (2) shall— (a) state the reasons for the refusal, based on the contents and substance of the request and the information considered by the Information Officer; (b) contain a reference to specific provisions of this Act upon which the refusal is based; and (c) inform the requester that he or she may apply for a review of the decision in accordance with section 34. | |
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 | YES | 2 | 34.(1) The head of the information holder may, on application, review a decision taken by the Information Officer under this Act. (2) A requester may apply for a review of any decision of an Information Officer. (3) A third party may apply for a review of a decision of an Information Officer to grant access to information containing its third party information. (4) An application for review under subsection (2) shall be filed with the Information Officer of the public body within 60 days of the receipt of the relevant decision of an Information Officer. (5) An application for review under the subsection (3) shall be filed with the Information Officer of the relevant body within 10 days of the receipt of a decision of an Information Officer. (6) An application for review shall identify the request and decision of the Information Officer which is the subject of the review. (7) If an application under subsection (1) is lodged after the expiry of 60 days, the Information Officer may, upon good cause shown and with the approval of the head of the information holder, allow the late lodging of the application. (8) As soon as possible, but in any event within five days after receipt of a review application, the Information Officer shall submit to the head of the information holder the - (a) review application, (b) Information Officer’s reasons for the decision; and (c) information that is the subject of the review, and notify the requester and, where relevant, the third party in writing that the documents have been so submitted. 35 (1) The head of the information holder to whom a review application is submitted in accordance with section 34 shall as soon as reasonably possible, but in any event within 15 days after the review application is received by the Information Officer— (a) make a decision; and (b) notify the requester or the third party, as the case may be, of that decision in writing. (2) If the head of the information holder determines to grant access to the information, the notice to the requester referred to in subsection (1) shall state - (a) the reproduction fee or transcription fee, if any payable; (b) the form in which access will be given; and (c) that the requester may apply to the Information Commission under section 58 for appeal against the decision in respect of the reproduction fee, or transcription fee payable or the form of access and the process for lodging that appeal. (3) Subject to subsection (4), where a requester has been given notice under subsection (2), that requester shall-— - (a) if a reproduction fee or transcription fee is payable, upon payment of that fee; or (b) if no reproduction fee or transcription fee is payable, immediately, be given access to the information. (4) Where the head of the information holder has determined to release information containing third party information, the requester may not be granted access to that information until such time as any right of the third party to appeal against the decision under section 58 has expired or any appeal lodged by the third party has been finally determined. (5) If the head of the information holder determines not to grant access to the information, the notice to the requester referred to in subsection (I) shall - (a) state reasons for the refusal. based on the contents and substance of the request and the information considered by the head of the information holder; (6) Where a third party has lodged an application for review, the notice referred to in subsection (1) shall state—(a) reasons for the decision; and (b) that the third party may appeal to the Information Commission under section 58 against the decision, and the process for lodging that appeal. (7) If the head of the information holder fails to give a decision on a review application within the time specified in subsection (I), the head of the information holder is deemed to have affirmed the original decision of the Information Officer and the requester may file appeal to the Information Commission under section 58. | |
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 | 58. A requester or a third part may file appeal against the decision of the head of the information holder in writing to the Information 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 | YES | 2 | 37. (1) The President shall in consultation with the Speaker of the National Assembly appoint to the Commission from among the candidates proposed by the Constitutional Appointments Authority, a Chief Information Commissioner and two Information Commissioners. (2) The proposal of the Constitutional Appointments Authority shall be on the basis of the experience and knowledge specified in subsection (3) and qualification specified in section 38. (3) A person to be appointed as a Chief Information Commissioner or Information Commissioner shall have wide experience and knowledge in any one or more of the following fields of services— (a) accounting; (b) administration and governance; (c) law; (d) science and technology; (e) management; or (f) social sciences. (4) The term of office, salary and allowances of Chief Information Commissioner and Information Commissioners shall be such as may be prescribed. 39.(1) The Chief Information Commissioner or an Information Commissioner may resign upon giving two month’s written notice, to the President. (2) The office of the Chief Information Commissioner or Information Commissioner, as the case may be, shall become vacant— (a) if absent from three consecutive meetings of the Commission, uthoutreasonab1e excuse; (b) if adjudged bankrupt; (c) if convicted of an offence under any written law and sentenced therefor to imprisonment for a term of six months or more, without the option of a fine; (d) if declared to be of unsound mind or physically incapable for carrying out the functions of the Chief Information Commissioner or Information Commissioner as the case may be; or (e) upon death. (3) Where a vacancy arises for any reason whatsoever in the office of the Chief Information Commissioner or Information Commissioner before the expiry of the term of office, the person appointed to till such vacancy shall hold office for the remainder of the term for which his or her predecessor in office would have held office if such vacancy had not occurred. 40.(1) Subject to the provisions of subsections (2), (3) and (4), the President may remove from office the Chief Information Commissioner or Information Commissioner on grounds of gross misbehavior. (2) Where a complaint, allegation or report of misbehaviour against the Chief Information Commissioner and Information Commissioner is received and the President is prima fame satisfied that it shall be enquired into, the President shall refer the matter to the Chief Justice of Supreme Court for enquiry and report. (3) Where a question of removing the Chief Information Commissioner or Information Commissioner is referred to the Chief Justice, the President may suspend the Chief Information Commissioner or Information Commissioner as the case may be, from performing the functions of the Commission but the suspension shall cease to have effect if the Chief Justice recommends to the President that the Chief Information Commissioner or Information Commissioner, as the case may be, ought not be removed from office. (4) The Chief Justice shall on a reference made under subsection (2) hold an enquiry and recommend to the President that Chief Information Commissioner or Information Commissioner ought to be removed on such ground or grounds and the President shall act accordingly. | |
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 | 68 The funds of the Information Commission shall consist of— (a) such moneys as may be appropriated by the National Assembly pursuant to an Appropriation Act for the purposes of the Information Commission, (b) any monies received by the Information Commission by way of donations, gifts or grants from any legal sources whether domestic or foreign, and (c) any proceeds from sale, lease or transfer of movable or immovable property of the Information Commission. 69 (1) The financial year of the Information Commission shall be the calendar year. (2) The Information Commission shall maintain proper accounts and other relevant records and prepare a statement of accounts in the form and manner approved by the Auditor-General. (3) The account of the Information Commission shall be audited by the Auditor General in accordance with Article 158 of the Constitution. (4) Where the accounts and the statement of accounts of the Information Commission in respect of a financial year have been audited, the Information Commission shall furnish, not later than 3 months after the end of the financial year, to the Minister and the Minister responsible for finance, a copy of the statement together with a copy of any report by the Auditor-General on the statement of accounts or on the accounts of the Commission. 70. The Information Commission shall, as soon as possible after the expiration of each financial year and in any event not later than the 31st day of March in any year, submit to the Minister, and the Minister responsible for finance, an annual report dealing generally with the administration and its activities during the preceding financial year and the Minister shall cause the report to be laid before the National Assembly. | Bit confusing in terms of lines of reporting but ultimately to 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 | 37. ... (3) A person to be appointed as a Chief Information Commissioner or Information Commissioner shall have wide experience and knowledge in any one or more of the following fields of services— (a) accounting; (b) administration and governance; (c) law; (d) science and technology; (e) management; or (f) social sciences. 38.(1) A person having the qualification specified under section 37 is eligible to be appointed as the Chief Information Commissioner or Information Commissioner if that person (a) is a citizen of, and resides permanently in the Republic; (b) is of proven integrity; and (c) has distinguished record of public service, or service in a profession or vocation. (2) A person shall not be appointed as the Chief Information Commissioner or Information Commissioner if that person (a) holds office in, or is an employee or a political party, (b) has been convicted and served a sentence of imprisonment for term of six months or more for an offence involving fraud, dishonesty or moral turpitude, or any other written law. | |
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 | Partially | 1 | 62(3) With respect to any matter before it, Information Commission has the power to - (a) summon witnesses, or any person where necessary; (b) summon expert witnesses where appropriate; (c) allow interested parties on application to join proceedings, (d) provide assistance to applicants where appropriate, (e) allow relevant persons to participate hearings; (f) compel any witness or evidence it considers necessary for the resolution of a matter; and (g) administer oaths and receive any such evidence it deems necessary under oath or on affidavit. | Can summon witnesses and information but not conduct inspections (apart from during an audit). |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 63(2) (2) The Information Commission may issue such directions as it considers necessary to enforce its decisions. | Seems pretty clear they are binding. |
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 | 63(1) The Information Commission may, on conclusion of the appeal proceedings before it, issue orders or recommendations on any matter before it, including— (a) affirming the decision of the information holder, (b) varying the type of access originally granted or requested; - (c) setting aside the decision of the information holder and making a ruling; (d) requiring the information holder to take such steps as may be necessary to secure compliance with its obligations under the Act; (e) mandating negotiation, conciliation, and arbitration, pursuant to section 48(2)(a); | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | NO | 0 | N/A | Not mentioned |
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 | N/A | Not specifically mentioned but implicit in the administrative rules. |
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 | 34(2) A requester may apply for a review of any decision of an Information Officer. | |
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 | 60. The Information Commission shall notify the head of the information holder concerned of the intention to carry out an investigation or hearing with a copy of the appeal before commencing an investigation or hearing under this Act. 62.(1) In any matter before the Information Commission, a reasonable opportunity to make representations shall be given to - (a) the person who made the application, and to the requester, if he or she is not the applicant; (b) the head of the information holder concerned; (c) a third party if the information requested contains third party information and the third party can reasonably be located. (2) The right to be present during a hearing shall be upheld except when, in the view of the Information Commission, the circumstances dictate the holding of a hearing in camera. (3) With respect to any matter before it, Information Commission has the power to - (a) summon witnesses, or any person where necessary; (b) summon expert witnesses where appropriate; (c) allow interested parties on application to join proceedings, (d) provide assistance to applicants where appropriate, (e) allow relevant persons to participate hearings; (f) compel any witness or evidence it considers necessary for the resolution of a matter; and (g) administer oaths and receive any such evidence it deems necessary under oath or on affidavit. The Information Commission shall produce a statement of facts, findings and reasoning for decisions on matters before it, a copy of which shall be provided to all parties to the matter free of charge. | Procedures but no time limits. |
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 | YES | 2 | 56.(1) The Information Commission may audit compliance by an information holder with this Act. (2) The powers of the Information Commission to conduct an audit under subsection (I) include the power to (a) conduct inspections; (b) undertake any investigation it deems appropriate in furtherance of the audit; (c) engage with staff of the body (d) request copies of any information, and (e) access any information it deems necessary to undertake the audit. (3) The Information Commission shall (a) notify the information holder of the audit, (b) issue time-bound recommendations to the information holder and (c) monitor implementation of its recommendations. 57. In the event of non-compliance by an information holder with and of the obligations under section 51 to section 55, the Information Commission may issue a notice specifying a time-frame for compliance with the obligation and any further directives as the Information Commission considers necessary or appropriate. 63(1) The Information Commission may, on conclusion of the appeal proceedings before it, issue orders or recommendations on any matter before it, including—... (d) requiring the information holder to take such steps as may be necessary to secure compliance with its obligations under the Act; | May audit compliance and order measures; may also order general measures as part of an appeal |
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 | 63(3) The Information Commission May impose a fine not exceeding SCR25,000 in cases where the Information Officer without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under part II of the Act or in bad faith denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or, obstructed in any manner in furnishing the information. 67. A person who with intent to deny a right of access to information under this Act— (a) destroys, damages or alters information, (b) conceals information; (e) falsifies information or makes a false record, (d) obstructs the performance by an information holder of a duty under this Act; (e) interferes or obstructs the work of the Information Commission; or (f) directs, proposes, counsels or causes any person in any manner to do any of the above, commits an offence and is liable on conviction to imprisonment for a term of 5 years and a fine of SCR200, 000 or with both imprisonment and fine. | Fines by Commission and criminal offences. |
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 | Partially | 1 | 54(2) The Information Commission may impose a fine not exceeding SCR100,000 on public bodies that do not comply with the annual reporting obligation. | Only for failing to respect the annual reporting requirement. |
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 | 66.(1) No person is criminally or civilly liable for the disclosure or authorisation of the disclosure in good faith of any information under this Act. (2) No person may be subjected to any detriment in the course of their employment by reason of the disclosure or authorisation of the disclosure in good faith of any information under this Act. 73. A suit or other legal proceedings shall not lie against the Information Commission, Chief Information Commissioner, Information Commissioners, Chief Executive Officer or other employees of the Information Commission for any action taken or intended to have been taken in pursuance of the provisions of this Act. | |
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 | Not mentioned |
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 | 7. (1) The head of every public body shall, in consultation with the Minister responsible for that public body designate a suitable officer of that body as Information Officer for the purposes of this Act. (2) The designation of the Information Officers under subsection (1) shall be published in the Gazette. | |
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 | 48. (1) The Information Commission has the power to determine the nature, process and undertakings necessary to discharge its mandate in terms of this Act, including all work necessary for the promotion, monitoring and protection of the right of aceess to information (2) The Information Commission has the discretion and power to—(a) resolve a matter through negotiation, conciliation or mediation where it deems such recourse appropriate; (b) determine the need for, form of and type of investigation required for the determination of any matter, and (c) authorise or undertake any such action it deems necessary or appropriate for the execution of its mandate under this Act. (3) The Information Commission may—(a) determine and issue general directions for the hearing of a matter including notification of parties; (b) issue specific directions where issues of sensitivity to the state are concerned; (c) issue specific directions in matters concerning confidential information or minors or circumstances which it deems appropriate for such action, (d) decide on all matters relating to the need for, form of; issuing and service of notices and communications; and (e) decide on issues of representation where necessary. (4) The Information Commission has the power to - (a) issue written orders obliging the production of information; (b) examine, reproduce, take extracts from or hold information for as long as is necessary; (c) require the production of information to which access has been refused on the basis of an exemption under Part III, for the purpose of deciding whether it is an exempt document; (d) limit access to information by the parties in terms of this Act; and (e) take any such other action or issue and serve notices as may be appropriate for the resolution of any matter before it. | |
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 | 49(2) The Information Commission shall prepare a guide to this Act, in all national languages, to assist users in requesting information. 50. (1) The Information Commission shall promote awareness, educate and popularise the right of access to information. (2) In promoting the right of access to information, the Information Commission shall—(a) assess all implementation plans required in terms of section 52 to ensure information holders have clear obligations and processes which support awareness raising and education interventions at community level including disadvantaged groups, (b) consult and collaborate with civil society organisations and interest groups, (c) provide recommendations and guidelines to information holders for internal training of personnel, and provide training on request; (d) monitor internal training of staff within public bodies and issue notices for mandatory training where necessary; (e) assist both requesters and information holders on matters of interpretation of the Act; and (f) develop such material as it deems necessary to advance promotion of access to information. | |
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 | 4. (1) Every public body shall create, keep, organise and maintain its information in a manner which facilitates the access to information, as provided in this Act. (2) For the purpose of subsection (1), every public body shall - (a) produce information in respect of all its activities, including to those expressly provided for under section 5 of this Act; (b) arrange all information in its possession systematically and in a manner that facilitates prompt and easy identification; and (c) keep all information in its possession in good condition and in a manner that preserves the safety and integrity of its contents. | Very weak system involving a general obligation. |
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 | 5(2)Every public body shall annually publish in such manner as may be prescribed the following information produced by or in relation to that body—(d) a list of all the categories of information held by it or under its control; | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | Partially | 1 | 50(2) In promoting the right of access to information, the Information Commission shall—... (c) provide recommendations and guidelines to information holders for internal training of personnel, and provide training on request; (d) monitor internal training of staff within public bodies and issue notices for mandatory training where necessary; 52(2) The plan referred to in subsection (1) shall include ... (e) (e) steps to secure continued capacity building and compulsory training plans for staff; | Support from the commission for this but no obligation to conduct. |
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 | YES | 2 | 6(1) Every public body shall annually, within the timeframe stipulated by the Information Commission, submit to the Information Commission—(b) annual reports on the implementation of this Act in accordance with section 54 of this Act.; 51. (1) Information holders shall provide such reports as are required by this Act to the Information Commission. (2) The Information Commission may, following public consultation, develop and publicise guidelines which detail the reporting requirements, including the manner, means and time-frames that apply to information holders. (3) The Information Commission has the discretion to request any further information from information holders to facilitate and enhance monitoring at any time. 54. (1) The Information Officer of each public body shall annually, but no later than the end of the first quarter, submit to the Information Commission a report stating in relation to the body in respect of the preceding year—(a) the number of requests for access received; (b) the number of requests for personal information received: (c) the number of requests for access granted in full, (d) the number of requests for access refused – (i) in full; and (ii) in part: (e) the number of times each provision of Part III was relied on to refuse access in full or in part; (f) the number of cases in which the periods stipulated in section Il were extended in terms of section 12; - (g) the number of review applications lodged with the head of the information holder; (h) the number of review lodged on the ground that a request for access was regarded as having been refused in terms of section 14, (i) the number of cases in which, as a result of a review, access was given to information; (j) the number of appeals filed before the Information Commission and the outcome of those appeals; (k) a description of the steps or efforts taken by the head of the body to encourage all officers of that body to comply with the provisions of this Act; (l) any facts which indicate an effort by the body to administer and implement the spirit and intention of the Act according to its submitted plan; (m) particulars of any penalties imposed against any person under this Act; (n) particulars of any disciplinary action taken against any person under tins Act; (o) particulars of any difficulties encountered in the implementation of this Act in terms of the operations of the body, including issues of staffing and costs; and (p) recommendations for reform, or amendment of this Act, other legislation, or practice relevant to the optimal realisation of the objectives of this Act. (2) The Information Commission may impose a fine not exceeding SCR100,000 on public bodies that do not comply with the annual reporting obligation. (3) Public bodies shall incorporate the annual report submitted to the Information Commission under this Act into their annual reports submitted to the National Assembly. | |
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 | NO | 0 | N/A | Not mentioned. Just a general report on its own activities pursuant to s. 70. |
