In 1946, the UN General Assembly resolved: "Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated". Enshrined in the Universal declaration of Human Rights, the right's status as a legally binding treaty obligation was also affirmed in Article 19 of the International Covenant on Civil and Political Rights which states: "Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers". Jurists consequently claim that this has made right to access information part of the body of universal human rights law.
It would be important to share our experience pertaining to the evolution taking place in the upholding of human rights within the matrix of access to information. This is important given the fact that Right to Information (RTI) is a basic tool for building robust democratic systems through the informed participation of politically active and conscious citizens interested in matters of public interest. We must remember that public information is meant not only to protect rights but also to prevent abuses by the State. This path is not easy and success depends not only on the tools that we have at our disposal but also in our ability to use them effectively.
In South Asia, until now, only four countries - Bangladesh, India, Nepal and Pakistan - RTI systems in place. Afghanistan, Bhutan and Maldives are seriously considering introducing such process, but Sri Lanka is still debating this principle given their sensitivity over their Tamil problem.
The Bangladesh Constitution and the Right to Information Act, 2009, like Article 13 of the American Convention on Human Rights, hold that every citizen has the right to seek, to receive and impart information freely with the exception of certain regime of restrictions. Section 2(f) of our RTI Act defines 'information' in terms of scope and intent. The exemptions are outlined in Section 7 of the Act. They include, inter alia, information that may, if disclosed, can cause a threat to the security, integrity and sovereignty of Bangladesh; information relating to foreign policy that may affect the existing relationship with any foreign country or international organisation; any secret information received from a foreign government; any information relating to intellectual property right; any advance information about income tax, government duties, the budget or changes in the tax rate; any information, that if disclosed, can offend privacy of an individual or endanger his physical safety. A Schedule vide Section 32 also enumerates that the provisions of the RTI Act would not apply (except with regard to information pertaining to corruption and violation of human rights) to certain State security and intelligence agencies involved in state security and intelligence gathering. Section 9 (4) however tries to level the playing field by stating that whatever be the situation, if a request for information relates to the life and death, arrest and release from jail of any person, the Officer-in-charge shall provide preliminary information thereof within 24 hours.
I have found the presence of almost similar exemptions in a comparative study carried out with regard to RTI provisions in other South Asian countries, China, Korea, Japan and the USA.
We need to realise that RTI imposes on the State and in our case also on non-governmental organisations (receiving financial support from the State or from foreign development partners) an obligation of pro-active transparency. It also needs to be noted that the information provided should be understandable and available in approachable language and up to date. This will be consistent with the expectations raised by the UN, OAS and the OSCE Special Rapporteurs on Freedom of Expression and their 2004 Joint Declaration. This element will be particularly important with regard to activities that affect members of the public, their budget, subsidies, benefits and contracts.
In principle, limitations that remove certain types of information from public access is based on their exceptional nature, purported legal and legitimate objectives and the possibility of real danger threatening national security. Unfortunately, this process of withholding information creates fertile grounds for discretionary and arbitrary action on the part of State bodies that then create the inherent right of classification of information as secret, reserved or confidential. This, in turn, generates some uncertainty in what citizens can take for granted. Such a scenario might subsequently lead to exceptions becoming the easy way out and a common practice.
In South Asia we are trying to agree that limitations to RTI to seek, to receive and impart information must be prescribed by law expressly and in advance, to ensure that discretion as a tool is not resorted to in an excessive manner. The person seeking information also needs to be provided with a reasoned response that provides the specific reasons for which access is denied. In the Bangladesh RTI process this has been ensured for the applicant through Form 'Kha' of Rule 5 of the RTI Act, 2009.
Within the contemporary scenario, national security needs are often underlined for exercise of exemptions and for implementing limitations on the free flow of information. It has become a controversial issue. The excuse of national security for not releasing information may be used with regard to immediate threats - for example, the particular tactics of an ongoing military campaign - rather than as a tool to prevent embarrassment of officials for previous foreign policy interventions or security associated campaigns.
I feel that secrecy laws need to define national security precisely without being vague or generic. Jurists quite correctly have pointed out that the criteria to be used for determining whether or not information can be declared secret should be unambiguous. This is the only way for ensuring the primacy of public interest. The rules should also include an organogram that stipulates which official or officials are entitled to classify documents as secret and should also set overall limits on the length of time documents may remain so.
There is also need to refer in this context to 'whistleblowers' and their obligation to maintain confidentiality or secrecy. I believe that 'whistleblowers' revealing information for public good on deliberate wrongdoing by public bodies through action or policies that might pose serious threats to public health, public safety, fundamental human rights as enshrined in law and the constitution or the environment need to be protected against legal, administrative or employment related sanctions.
There also needs to be emphasis on the creation and preservation of digitalised police archives and land records to reduce chances of abuse of authority. This will also improve the process of best practice in domestic law and will in turn help individuals to access to State information consistent with Article 19 of the International Covenant on Civil and Political Rights. This will also support the culture of transparency to reduce the prospect of corruption.
The State also needs to carefully examine the juridical aspects that can further facilitate the process of transparency and in the free flow of information. That should include regulations and jurisprudence pertaining to access to court documents, such as complaints, briefs, motions and evidence. There is need to carefully monitor that print and electronic media are not unnecessarily persecuted or prosecuted for their good-faith publication of information (this will, of course, not apply if there is proof of any personal or monetary gain accruing to the media person arising out of such publication).
These areas of disclosure merit serious consideration with regard to public offices and institutions - a) Institutional information: legal basis of the institution, internal regulation, functions and powers. b) Organisational information: organisational structure including information on personnel and the contact information of public officials responsible for providing information. c) Operational information: data being used as a basis for formulating strategy and plans, activities, procedures, decisions, reports, and evaluations. c) Public services information: descriptions of services offered to the public, information on fees and deadlines. d) Budget information: projected budget, actual income and expenditure (including salary information) and audit reports. e) Subsidies information: information on the beneficiaries of subsidies, the objectives, amounts, and implementation. f) Public procurement information: detailed information on public procurement processes, criteria, and outcomes of tender applications; copies of contracts, and reports on completion of contracts. Such proactive disclosure can be done through government web portals, sunshine laws which require that regulatory authorities' meetings, decisions and records be made available to the public and through e-governance programs.
This will help limit limitations and assist in the creation of open and accountable governance.
Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance.
mzamir@dhaka.net