The Sri Lankan Cabinet on Dec. 2 approved a draft right to information bill that is expected to be introduced in Parliament in January.
The draft text was the subject of a critical preliminary analysis by the Commonwealth Human Rights Initiative (CHRI), which listed 32 reservations about the bill. The Centre for Law and Democracy also has provided an analysis, saying the law, if passed, would due the seventh strongest in the world.
The draft bill will be published in the Official Gazette and sent to the local Provincial Councils and other local bodies for their comments and suggestions because they would be covered by the bill.
President Maithripala Sirisena in January 2015 promised enactment within 100 days but consideration was delayed in June.
The new draft defines a covered public authority as a ministry, any office established by the Constitution (other than the Companies Act), a department, public corporation, a company in which the state holds 25 per cent of the shares or more, a local authority, a private entity carrying out a public function in agreement with a government body or local authority, Provincial Councils, NGOs that are “substantially funded” by the government or by a foreign government or international organisation rendering a service to the public, higher educational institutions including private universities and professional institutions, all courts and tribunals.
A “citizen” entitled to make a request includes a body whether incorporated or unincorporated, if not less than three-fourths of the members are citizens.
Exemptions Regime
The exemptions provisions permit disclosure of information “which can reasonably be severed from any part that contains information exempted from being disclosed” and says that “a request for information shall not be refused where the public interest in disclosing the information outweighs the harm that would result from its disclosure.”
CHRI RTI expert Venkatesh Nayak expressed concern that the bill gives the Attorney General’s Office “an exemption to protect its communication with government” from RTI pleas, which is “a blanket exemption, not in tune with international best practice standards.”
The proposed law would prevent release of personal information unless the larger public interest justifies the disclosure of such information. Other exemptions cover state or national security, relations with foreign states or international agreements, information that would be seriously prejudicial to the economy, information that would cause grave prejudice to the detection of crime.
Also exempt from disclosure would be information that “would undermine the defence of the State or its territorial integrity or national security” and that “would be or is likely to be seriously prejudicial to Sri Lanka’s relations with any State, or in relation to international agreements or obligations under international law, where such information was given by or obtained in confidence.
Further, disclosure would be prevented if “the disclosure of such information would cause serious prejudice to the economy of Sri Lanka by disclosing prematurely decisions to change or continue government economic or financial policies relating to:-
- exchange rates or the control of overseas exchange transactions;
- the regulation of banking or credit;
- taxation;
- the stability, control and adjustment of prices of goods and services, rents and other costs and rates of wages, salaries and other income; or
- the entering into of overseas trade agreements;
Also covered in the exemptions section is information, “including commercial confidence, trade secrets or intellectual property, protected under the Intellectual Property Act, No. 36 of 2003, the disclosure of which would harm the competitive position of a third party, unless the public authority is satisfied that larger public interest warrants the disclosure of such information;
- the information could lead to the disclosure of any medical records relating to any person, unless such person has consented in writing to such disclosure;
- the information consist of any communication, between a professional and a public authority to whom such professional provides services, which is not permitted to be disclosed under any written law, including any communication between the Attorney General or any officer assisting the Attorney General in the performance of his duties and a public authority;
- the information is required to be kept confidential by reason of the existence of a fiduciary relationship;
The disclosure of information elated to law enforcement is also addressed. Further exempt is disclosure of such information that “would infringe the privileges of Parliament; or disclosure of the information would harm the integrity of an examination being conducted by the Department of Examination or a Higher Educational Institution.”
Commission to Be Established
The bill provides for the establishment of a five-member Right to Information Commission drawn from the Bar Association of Sri Lanka, organizations of publishers, editors and media persons; and other civil society organizations.”
Nayak criticized the bill as “virtually toothless” for not giving the Commission sanctions for noncompliance.
The Commission is charged with ensuring the compliance by public authorities with the law. It is given power to hear appeals and to direct a public authority to provide information.
The appointment of information officers is mandated. Public authorities are charged with keeping records “duly catalogued and indexed”.
Requests are to be answered in 14 days.
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