It is very encouraging that the Government of Khyber Pakhtunkhwa has prepared draft law on right to information. Our comments on the draft are presented in the Table below. Our comments are based on the following:
- International standards regarding right to information legislation, which include (a) maximum disclosure; (b) minimal exception, (c) obligation for proactive disclosure; (d) process to facilitate access; (e) minimal costs; (f) disclosure should take precedence; (g) open meetings; and (h) duty to assist.
- CPDI’s own experience (and the insights thus gained) of using the existing Freedom of Information Ordinance 2002; as well as of submitting and perusing information requests submitted to various government departments at the Federal, provincial and district levels.
- Regional legislation (e.g. Indian Right to Information Act 2005 and the Bangladesh’s Right to Information Act 2009) and the experience of the implementation of these laws.This draft needs to be improved to make it consistent with Article 19-A of the Constitution as well as with the regional and international standards. A good right to information act can make a significant difference in terms of empowering citizens, improving governance, strengthening democracy, instituting public accountability and bring about transparency in government functioning. The comments presented below are not exhaustive, as these have been prepared in-house in a short duration. CPDI may be presenting additional ideas and suggestions later, if need be. The following table contains CPDI comments on specific sections of Khyber Pakhtunkhwa Access to Information Act 2013.
CPDI Comments on specific sections of Khyber Pakhtunkhwa Access to Information Act 2013.
|Provisions of Khyber Pakhtunkhwa Access to Information Act 2013||CPDI Comments|
|Section 2 Definitions||Definition of public body in Section 2 (i) needs to be expanded. Its scope may be expanded to include all kinds of for-profit and not-for-profit non-governmental organizations that are working in Pakistan.
Section 2(j): Information should also include the categories of information like agreement, feasibility report, inquiry reports, budget, official expenses, and records of payments, records of procurements, quotations, tenders, bills, expense claims, vouchers, reimbursement records and work sheets.
|Section 7,8,14,15,16,17,18||Like Freedom of Information Ordinance 2002, (FOI 2002), it contains three lists of records, a, discloseables records (Section 7, undiscloseables (Section 8) and list of exempted information (Section 14,15,16,17,18). A good right to information law has only one narrowly and clearly drawn list of exempted information and the rest of the information is declared public information. In a democratic country, people have all the right to know how government uses the powers and resources at its disposal, which should only be used in the larger public interest. Section 8 excludes from disclosure noting on the files or minutes of meetings or summaries and intermediary opinions. Any exclusion of documents and information relating to internal working will negate peoples’ right in this regard and, hence, will undermine their ability to oversee and make suggestions for increasing efficiency or improving performance. This is clearly an unreasonable restriction and is, therefore, in contravention of Article 19-A of the Constitution.
People have the right to know about the considerations, factors or arguments taken (or not taken) into account in the process of making a particular decision or passing an order. Hence, without having full access to information about noting on the files or minutes of meetings or summaries and intermediary opinions, it would not be possible for people at large and direct stakeholders in particular to give timely input and present additional information or perspectives, which might lead to improved decision making. It is, therefore, very important that, barring minimal exceptions, all information must be accessible for public comments and feedback.
|Section 20 Applet Body||Khyber Pakhtunkhwa Access to Information Act 2013 also envisages Ombudsman as an appellant body. Punjab Freedom of Information Act 2012 approved by the Punjab Cabinet envisaged the establishment of five member Punjab Information Commission, an independent and autonomous body. This is the practice in most of the countries of the world. In our own region, India and Bangladesh have also established independent and autonomous information commission. Our experience of submitting information requests to government departments shows that Federal Ombudsman is a toothless appellant body in terms of making effective intervention and helping citizens have access to information when it such a request to public bodies is unlawfully denied. One, Freedom of Information Ordinance 2002 does not empower Federal Ombudsman to impose penalty on public officials for wrongfully denying access to information. Two, the experience also shows that Federal Ombudsman deals complaints with the narrow prism of maladministration and not denial of fundamental right of citizen which it is entrusted to protect. Three, even in cases where Federal Ombudsman instructed to provide information, public bodies generally opted to file representation to the President of Pakistan instead of providing us the requested information. Therefore, it is recommended that Ombudsman as an applet body should be done away with in the proposed KPK law and independent and autonomous information commission on the lines of draft Punjab Freedom of Information Act be established.
|Section 13||Reasonable time limit for public bodies to respond to information requests is considered to be 21 days. Seven days suggested in Section 13 is not sufficient time for public officials to collect and share information.|