A revised version of the proposed model law on access to information for Africa has been prepared for an upcoming meeting of the African Commission on Human and Peoples’ Rights.
Discussion of the new draft is planned during the Commission’s meeting Feb. 18-25 in Banjul, Gambia. The new version, in English and French, is posted on the website of Centre for Human Rights at the University of Pretoria, which has been coordinating the process.
It will be the Commission’s second discussion of the model law. Commissioners were critical of the draft at their last meeting, held in October 2012 in Yamoussoukro, Côte d’Ivoire. (See previous FreedomInfo.org report.) Some commissioners called the proposal too far-reaching and detailed, urging that it be made less prescriptive.
The 37-page model law is now about 10 pages shorter than the previous version.
One reason appears to be the consolidation of a section concerning private bodies into the section applicable to public bodies and government owned or controlled bodies. Under the principles of the model law, “Every person has the right to access information of private bodies that may assist in the exercise or protection of any right expeditiously and inexpensively.” In other sections, general language has replaced enumerated lists.
The new draft also has been substantially reorganized. No official summary of the changes is available, and efforts to contact the Commission’s Special Rapporteur on Freedom of Expression and Access to Information and key drafters were unsuccessful.
A probably incomplete FreedomInfo.org review found a variety of changes.
Public Interest Override Section Modified
The override provision mandating disclosure if justified by the public interest has been reworked.
The new section says:
Notwithstanding any of the exemptions in this Part, an information holder may only refuse a requester access to information if the harm to the interest protected under the relevant exemption that would result from the release of the information demonstrably outweighs the public interest in the release of the information.
The old version said:
Notwithstanding any of the exemptions in this Part, an information officer must grant a request for access to information if the public interest in the disclosure of the information outweighs the harm to the interest protected under the relevant exemption.
Exemptions Section Alterations
One significant change is the apparent dropping of a detailed exemption (item 47, “The provision of free and open advice”), designed to protect the deliberative process of covered bodies.
The section on “legally privileged documents” has been made more detailed, to specifically cover confidential communications between medical practitioners and patients, lawyers and clients, and journalists and sources.
The section on “Redaction” has been renamed “Severance” and a clause has been added to require the disclosure of “the length or amount of information severed or redacted in the response to the requester.”
The section allowing the refusal of vexatious requests now requires information officers to explain the reasoning for the denials.
Information officers are given eight days instead of five to contact third parties about requests concerning them.
The section on requesting reviews would allow reviews of any decision of an information officer, dropping a list of what could be appealed.
Oversight Mechanism Changes
Changes to the “oversight mechanism” section add “gender balance” as a consideration in the selection of information commissioners, and include a requirement that commissioners have “requisite academic qualifications and working experience.”
The section on the terms of information commissioners is made more general, dropping a suggestion of four year terms. Instead the new language calls for appointment to a “stipulated term subject to reappointment for one further period.”
Regarding the termination of commissioners, the new language would permit terminations to be justified “on performance grounds.” The process would include a new step, an independent commission on inquiry, before a commissioner could be terminated by a two-thirds vote of Parliament.
The section on commissioner remuneration is made more general. A clause stating that the oversight mechanism “shall perform its functions without fear, favour or prejudice” has been dropped. Also gone is a requirement for the oversight body to develop its own code of conduct.
The language on hiring commission staff is shortened, dropping requirements for confidentiality agreements and “appropriate clearances.”
Power Section Reworked
The section on “General Powers of the Oversight Mechanism” is modified and reorganized, complicating the task of contrasting the old and new.
One new power seems to have been added, granting the oversight mechanism authority to “exempt any category of organisations operating on a non-profit basis that are relevant private bodies by virtue of subsection (b) of the definition of relevant private body carrying out a public service, from any of the obligations in this Act.”
At times the commission’s powers seem to be reined in more. For example, the oversight mechanism is allowed to dismiss a matter it considered “manifestly vexatious,” but no longer could dismiss matters that are “frivolous or clearly unwarranted.”
Promotion, Monitoring Section Reworked
The sections on promotion and monitoring have been substantially reorganized, with a variety of changes. Most appear modest, such as swapping “must” for “shall.”
A more substantive change would allow the oversight mechanism to issue a “binding directive” to covered bodies “on specific plans for enhanced implementation.” The older version allowed “recommendations.”
Similarly, the audit section now includes a clause that would give the oversight mechanism the power to fine information holders for noncompliance with obligations in the “Division 5” section of the model law, on “Promotion.”
Applications to the Oversight Mechanism
Although in general the information holder bears the onus of defending a refusal to provide access, the new draft specifies that the reverse should be the case in cases involving private bodies. In such situations, the requester bears the onus of proof.
Another modification would allow the oversight mechanism to impose fines, and not only in cases of repeated, egregious and willful failures to comply.
Filed under: What's New