Achieving a Meaningful Freedom of Information Act

The pronouncements on the proposed Freedom of Information Act which were made on the 27th January by the President in his address on the Government Programme of 2015-2019 undoubtedly herald a move towards a stronger form of democracy.
Indeed, a government of, for and by the people cannot be one that, by and large, only affords its people with power when they are making half-informed choices at elections. The typical fluctuations which occur over time in the people’s reactions to “scandals” involving public officials, are a clear indication that something is amiss in the current system. When an incidence of high-level corruption is first unearthed, we begin by being outraged and proceed to engage in heated discussions amongst ourselves. At the same time, we can barely hide the sense of triumph we feel at having found out that persons who were cheating us have been caught. And then, gradually, our impassioned speeches to each other turn repetitive and purposeless, because neither is there any new information to go on, nor has the ‘old’ information been satisfactorily confirmed. Left with practically no way of getting answers to burning questions, we find that the fire begins to die out. Thus begins the stage where the real issues get clouded and distorted by circumstantial gossip and face the danger of fading out of public memory.
Lack of information and lack of access to information breeds confusion, helplessness and complacency in people who, given the appropriate tools, could have been active citizens engaging in meaningful debates and effective scrutiny of public officials. The proposed Freedom of Information Act promises to be such an empowering tool, paving the way for greater openness, transparency and accountability on the part of those who have been entrusted with the electorate’s votes and the taxpayers’ money. If the proposed law follows the model adopted in countries such as India, the result will be a society where we would not have to wait for information to be dished out to us by public bodies and the media. There will be a right to information, a right to receive answers to questions that matter. The combat against fraud and corruption laudably advanced by the new government in its programme, will have found its army.
In my previous articles on the freedom of information (FOI), I wrote about the relationship between democracy, the public interest and FOI (www.lemauricien.com/article/right-know); about some of the different FOI legislations adopted in other countries (www.lemauricien.com/article/right-know); and on the pressing need for a FOI Act, despite the reservations that have been expressed on the adoption of such an Act (www.lemauricien.com/article/do-we-need-freedom-information-act). This article will briefly deal with some recommendations for the proposed Act in order to ensure that it is able to fulfill its stated purpose – that of “broadening the democratic space.”
As with any legislation, the limitations and exceptions incorporated alongside enabling provisions are often the real indicators of the effectiveness of the law. This is not to suggest that the freedom of information needs to be made absolute. Limiting access to information in certain cases is, in fact, necessary, because the alternative could lead to a weakening of the system that is eventually put into place, due to the increased possibility of abuse of process if the floodgates are left open, and the burden on the administrative structures that would ensue. There are also other considerations that warrant attention, such as the privacy of individuals when they are not acting as public officials, and national security interests. Not all information is necessarily information that needs to be divulged in the public interest, and this has been recognized in every country that has implemented a FOI Act in some form or another.
Having said this, there is a strong need to define the exceptions and limits to the FOI in a precise manner. Blanket exceptions, open to various sorts of vague interpretations, would render the Act just as ineffective as it would be if it were not to be introduced at all. The stated rationale behind proposing the FOI Act is commendable indeed, but policy would hardly translate into practice, if the Act is worded in a way that enables public officials to conveniently hide behind such vague exceptions in order to refuse to provide requested information. It is essential to forecast the possible obstacles to FOI just as thoroughly as one would forecast the possible risks associated with an overly invasive FOI Act. And the balance, invariably, would need to tilt towards the public interest in facilitating access to required information, in line with the raison d’être of the Act.
Likewise, the delay, within which either the requested information or the reasons for refusing the request are to be provided, needs to be clearly specified in the Act. Terms such as “as soon as reasonably possible” which lend themselves to varying interpretations, should at best be avoided as they are open to misuse by administrative bodies. It is not difficult to conceive of a situation where inordinate and unnecessary delays in receiving a response act as deterrents to making use of the Act, and this would go against the very rationale behind introducing the Act. Understandably, it may not be feasible to designate a single time frame for all kinds of requests, but as the Indian Right to Information Act shows, it is possible to classify different types of request based on their urgency and on accompanying procedural requirements, and specify different delays accordingly.
Another crucial aspect of the Act would be the enabling structures put into place to implement its provisions. The Government Programme makes reference to Public Service Call Centre which will be “a one stop shop and information centre to help track applications made by citizens.” This appears to suggest that the system being envisaged is one that works fast and effectively, minimizing the stagnating delays of red tape and accompanying backlogs. If this is indeed the case, then the Right to Information (RTI) procedure adopted in India would be a worthwhile reference. An application under the Indian RTI Act can be made in any written form, handwritten or typed, and can be posted or submitted online. One merely needs to include the words “An Application under the RTI Act” on the application in order to trigger the mechanisms envisaged by the Act.
The simplicity of the Indian system is perhaps a result of the fact that the RTI movement in India began at the grassroots level, in the form of a protest for labourers who were not paid their full daily wages and were denied information regarding their wages. The Act was introduced so that everybody, irrespective of their level of education or social designation, could access the information that they needed to exercise their rights, and it continues to be implemented in a way that minimizes procedural barriers in order to best serve the people.  
Similarly, the proposal of our FOI Act has been framed alongside goals such as promoting meritocracy, increasing transparency and accountability, weeding out wastage and fighting corruption. It is hoped that the drafting of the FOI Act and its implementation would live up to the spirit in which the Act has been proposed.