This blogpost, is written by Prof Raja Mutthirulandi, Hon. Project Director, Human Rights Education, WCCI, Tiruchirapalli
Abstract
Freedom of / Right to Information (FOI/RTI) has now been universally recognized as a Fundamental Human Right. Such a wide recognition of the important right has perhaps propelled nearly 104 countries so far to bring into operation specific legal instruments to ensure this right to their people. Pitching with the global trend in this direction, almost all countries in the SAARC do have in force (except Sri Lanka and Bhutan) exclusive Acts (Ordinance in Pakistan) to provide access to public information. But, the legal framework of the relevant enactments of these countries – globally evaluated on the basis of ‘seven different categories’ – present a glaring mixture of top and bottom scores. This is indicative of the levels of access to information available to the people through relevant Acts in their countries.
One of the basic elements of FOI/RTI Act is ‘‘Exemptions’’ and this is also a crucial category of evaluation employed by International bodies assessing the efficacy of laws in this sphere. The “Exemptions” section is often reckoned as the heart of the FOI/RTI legislation. This is mainly because, “exemptions” to a large extent, determine the levels of people’s access to public records under the Legislation. Generally, Acts to provide access to information are expected, among other things, to have very limited but clearly spelt-out exclusions as per international norms and be precisely disclosure-oriented. Further, there should be specific, unambiguous provisions for “public interest override”, “severability of information”, “duration to withhold information under exempt category”, “avoidance of blanket exclusions of public bodies” and “supremacy of the Act” in relation to existing legislations.
A closer analysis of FOI/RTI Acts of SAARC nations with reference to the aspects listed hereinabove, reveal a high level of disparity among them and a clear disclosure deficit. This paper undertakes an in-depth scrutiny of the relevant Acts in force in SAARC countries, with particular reference to the provisions related to “exemptions/exclusions from disclosure” housed in the Acts.
Key words: FOI/RTI, exemptions, disclosure deficit.
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A groundswell of national legislations for providing peoples’ access to information and simultaneous development of international norms in this regard has happened since the post-1995 period.[1]This wide-spread development has undoubtedly heralded the surging up of, as Mark Bovens (2002) characterized, the ‘fourth great wave of citizen’s rights, equivalent to the civil, political and social rights’.[2] The rapid- pace acceleration of passage of Freedom of/Right/Access to information (FOI/RTI/ATI)[3] Acts in the recent decades is indicative of the global recognition of the legitimacy of peoples’ right to information. Actually, the fundamental change that RTI laws intended to bring about and assert was that “people had a right to access information held by the Government,” as underlined in the Queensland Report[4]. Scholars like John M. Ackerman et al. (2006), viewed this phenomenon as an ‘impressive display of policy innovation at a global level’ and also reckoned it as a ‘global wave of innovation in administrative law.’[5]
But, over the years, the RTI reality has manifested differently in different jurisdictions. Several governments, mostly entrenched in the still unshed-out culture of secrecy, save a few, have come out with RTI Acts designed with explicit or implicit aims to somehow shrink the nature, scope, and levels of peoples’ access to information. Commencing from the scripting of the scope of the law; prescribing the eligibility to make a request for information; chiseling definitions of crucial terms such as ‘information’, ‘public body/authority’ etc in a way to turn them ambiguous; introducing cumbersome procedure/forms for requesting information; levying unreasonable costs; granting the officials room for time manipulations to respond/ decide appeals; frustrating remedy routes/mechanisms; blanket exclusions of many government organisations from the ambit of the law and also through a spread of layers of restrictive measures throughout the legal architecture, the governments tend to throttle down flow of requested information to the people from official sources. It is perhaps, in acknowledgment of such a reality prevailing everywhere, the Queensland report laments that “unfortunately that clear statement of intent seems to have been buried by the scores of pages of legislation that are devoted to exclusions and exemptions and other qualifications of that right.”[6]
RTI laws in SAARC Nations
The South Asian region has also witnessed a corresponding spurt in enacting RTI laws in the post-1995 era. Pakistan scored first in 2002, though the Freedom of Information Ordinance (FOI), still in force, is much widely deplored. The FOI Ordinance remained in a shell for two years until relevant rules were framed in 2004. To counter mounting criticism about the glaring lacunae of the 2002 Ordinance and to improve the law in the field, the Pakistan Government introduced a draft Act in 2008, and it is yet to win final approval.[7] India joined next the galaxy of nations with RTI laws with its much feted Right to Information Act, 2005. Coming third among SAARC nations, Nepal enacted its Right to Information in 2007 and rules thereunder got framed only in 2009. The present Act of Bangladesh (2009) has come to stand as a slightly improved version of the country’s earlier Ordinance (2008). In Maldives, the draft bill was first tabled in the Majlis (Legislature) in November 2009, and it took several years for its ultimate adoption in 2014. The recent addition from SAARC is Afghanistan with its Access to Information Law 2014, enacted after protracted delay since early 2010 and reports say that this has made the country the 101st with RTI law. In Bhutan, the Right to Information Bill, 2013 was passed by Lower House and it is still pending without due approval/passage in the Council of Bhutan. In Sri Lanka, attempts to adopt RTI legislation in the country have not yet met with any concrete success, even after a constitutional amendment guaranteeing RTI for the people.[8] Given this scenario, the analysis of the paper is necessarily confined to RTI laws in force – those of Pakistan, India, Nepal, Bangladesh, Maldives and Afghanistan – leaving Bhutan and Sri Lanka for inclusion in a later study after the countries commence implementation of RTI laws. It would be appropriate to note at this stage, the scores and ranking of RTI laws (2015) provided by the Centre For Law and Development (CLD): Among SAARC nations, India is on top with a score of 128 points out of 150 and global ranking of 3rd position, Maldives coming next has earned 116 points and is placed in 10th rank. Bangladesh with a score of 107 is placed in rank 20 followed by Nepal in rank 23 and a score of 104. Afghanistan and Pakistan are far below both in SAARC group and among countries in global level. Afghanistan’s score is 77, rank 64 and Pakistan is way back with a score of 66 and rank of 84, out of 103 countries.[9]
General Overview of RTI Acts in SAARC Countries
Nearly all SAARC countries (included in the present analysis) have conferred the much celebrated right to information only to ‘citizens’ of their countries.[10] But Maldives has expanded the eligibility criteria by providing that “requests for information can come from any person, rather than being restricted to Maldivian citizens.”[11] The Indian and Bangladesh Acts are in general conformity with the foundational principle of RTI laws and they profess that ‘transparency is the rule, and secrecy the exception.’ [12] In the matter of extending ease of access to information, Pakistan’s FOI Ordinance deviates from recognized standards as it requires citizens to provide ‘a reason for seeking information’ and also imposes a restriction on the requestor that he should use the information obtained ‘only to the purpose stated in the application’. In India and Bangladesh, citizens requesting access to information need not provide any reason for such requests. Maldives Act, among SAARC nations, has a strange requirement by prescribing that ‘all requests for information to specify the right that is to be protected or enforced.’[13] Nepal, going half-way in this matter, stipulates that citizens must give a reason for request, but they are not required to justify those reasons.[14] The Afghanistan law is highly restrictive in the access stage itself. It prescribes a form for request; requires request to be sent to ‘appropriate unit’[15] ; makes a condition that only information in ‘documents’ are accessible; slaps a stipulation that the access to information will be allowed only in cases that “serve a right or bring ease to performing of the relevant duties”[16]. Providing reasons for denial of requests is generally expected. But, in Pakistan, Nepal and Bangladesh, the respective laws do not explicitly require an authority refusing disclosure to justify the refusal of request for information and this is a serious lacunae. As per the Indian Act, the authority denying the request for information has to state the grounds under which the denial is ordered.[17]
One of the international expectations on RTI laws is incorporation of a clear provision in the Act conferring supremacy of the legislation over other laws in force, and to the extent of conflicts in application between them and more specifically, those of the secrecy laws, if any. While Pakistan’s FOI Ordinance[18], in outright negation of the global standard, clearly declares that the law does not enjoy any overriding powers, in India, Bangladesh, Maldives and Afghanistan the laws contain provisions for overriding other laws that may infringe on citizens’ right to information.[19] Ambiguity prevails in Nepal’s RTI Act in the matter of RTI law overriding secrecy laws. [20]
Information belongs to public. In recognition of the principle it is always considered desirable that the governments practice pro-active disclosure of vital information impacting citizens’ lives and actions. Pakistan’s Ordinance has no clear provision for pro-active disclosure.[21] India, Nepal, Bangladesh and Maldives have specific provisions on proactive disclosure of information.[22]
The widely accepted norm for coverage under FOI/RTI law is to make the ambit of law broader and bring in all government departments at all levels; agencies receiving funds from governments; bodies engaged in governmental functions etc. Standing as an exception, Pakistan Ordinance covers only the Federal Government bodies, leaving provincial and local governments to separate provincial legislations. Further, in Pakistan, the military is fully exempt from coverage of the Ordinance. The FOI Ordinance does not cover any private organization or institution receiving funds from national, international donors and agencies.[23] RTI Acts of other SAARC countries cover all levels- legislative, executive and judiciary- of government. India’s RTI Act covers bodies owned, controlled, or substantially financed by the government. Although the Act does not make explicit mention of NGOs and other private bodies, any private organization or NGOs, ‘substantially funded by Government’ are brought under the ambit of RTI Act as confirmed a Supreme Court decisions. In Bangladesh and Maldives, the RTI Act explicitly covers NGOs, private bodies, and international organizations[24].
In the matter of excluding certain organization from the ambit of the law, India and Bangladesh, provide a blanket exemption from coverage for some national security and intelligence agencies[25]. However, in India, this exemption has been made inapplicable if the information sought relates to allegations of corruption or human rights abuses in those excluded organizations. Nepal’s RTI Act has a pioneering provision which includes even political parties within its ambit whereas in India, the recent decision of the Central Information Commission stands stayed through maneuvers by powerful political parties.
It is expected that, through RTI laws, Citizens should be enabled to have hustle free procedure for access to information. Among SAARC nations, Pakistan’s FOI Ordinance prescribes a specific format for an RTI application[26] and also a fee of rupees (PKR) 50 for the first ten 10 pages of documents, and PKR 5.00 for each additional page.[27] Nepal’s RTI Act does not specify any procedural requirements for submitting an application but has a requirement that the request should be submitted only to the relevant information officer.[28] The Indian and Maldives RTI Acts have very helpful provisions casting a duty on the officials to transfer the request to appropriate department within prescribed days of receipt of the request [29]. There is no such provision for automatic transfer of the request in the RTI laws of Bangladesh, Nepal, Afghanistan and Pakistan. In the matter of cots, the Afghanistan law goes to burden the requestor ‘to cover the expenses of processing their request.’[30] Fee for requests under India, Nepal, Bangladesh and Maldives Acts is reasonable and in India people below poverty line are provided total fee waiver.
Exemptions: A General Discussion
The paradox of RTI laws is that while the dominant and mechanical objective of the law is “disclosure”, the broad mandate for disclosure has to be justifiably frustrated by bridling the law for granting the governments some reasonable space for confidentiality in carrying out their business. Even hard-core votaries of liberal RTI regimes would appreciate this need and will have no hesitation to concede this point of providing some limited tenancy to ‘exceptions and exclusions’ in the laws. The inherent conflict between ‘openness’ and equally broad justification for ‘official secrecy’ needs to be tackled with utmost care by suitably fabricating the ‘exclusions and exemptions’ in the architecture of the law. But this rope walk has not proved easier for drafters everywhere. Confirming that the, “relationship of right to information laws with secrecy laws” Toby Mendel states that is “a difficult issue”[31] He adds that “perhaps the most difficult issue for any right to information law is the scope of the regime of exceptions. On the one hand, it is clearly important to protect all legitimate secrecy interests. On the other hand, if these are defined too broadly, this has the potential to seriously undermine openness.”[32] He opines that the difficulty could be mitigated if “… the exception is appropriate in scope, taking into account the need for openness.” [33] That exceptions could cause deficits in disclosure stands generally conceded.Due to the problem potential of exemptions, “the question of exemptions” as John M. Ackerman observes, has become “the most debated aspect” of RTI laws.”[34] Exemptions and exclusions in the RTI laws, deployed for ‘balancing’, would serve as ‘the basis for decisions about disclosure.’[35] To put it simply, the more and rigid the exemptions are, the disclosure levels would invariably be low, whereas, if exemptions are lesser and liberal, it would facilitate copious flow of information from government sources.
Achieving the acknowledged principle of ‘maximum disclosure of information held by public bodies, with only limited exemptions’[36] largely hinges on deft balancing between the twin requirements – peoples’ access to information and the governments need for some confidentiality. John M. Ackerman (2006) cautions that “a badly written set of exemptions can gut the law by allowing the authorities to withhold information at their discretion.”[37] By way of emphasizing the need to have a fit and ‘balanced’framework for the RTI law, Prof. Maeve McDonagh opines that “the degree of commitment to FOI of a particular jurisdiction… can be most readily measured by reviewing the legislative framework for FOI…”[38]. Further, elaborating on the aspects of FOI law that have “the potential to profoundly impact upon their effectiveness”, he includes “the scope and design of the exemption provisions” along with “the overall scope of the laws in terms of the bodies to which they apply, the types of record covered , the strength of the enforcement machinery etc.”[39] The World Bank also, in one of its reports, acknowledges that ‘‘what exceptions should be made to a freedom of information law is a complex and controversial issue, and an area where some otherwise progressive laws fall short.’’[40] It is therefore not surprising that we see an emphasis in Holsen (2007) holding that ‘evaluating FOI laws requires focusing on how it limits access through exemptions.[41]
Exemptions, with ‘limited species’, have come to be accepted as a part of the ecosystem of access to information. In order to contain their malicious effects on RTI environment, certain softeners are widely suggested. Article XIX has proposed a three part test to justify exemptions: 1) The information must relate to a legitimate aim listed in the law; 2) disclosure must threaten to cause substantial harm to the aim in (1) and 3) the harm to the aim must be greater than the public interest in having the information.[42] It is expected that only when all three conditions are satisfied, exemptions should stay. It has further proposed that the overall formulation should “ensure that the law provides for a comprehensive list of exceptions, set out in precise and narrowly-drawn terms.”[43] It is generally conceded that exceptions geared to protect interests such as defense and security, legitimate interests such as personal information, health and safety related information can stay. Toby Mendel (2008) has observed that “few of the laws surveyed” in his book “strictly conform to all three parts of this test, but many do at least broadly reflect it.”[44] Within exemptions, additional provisions for ‘partial disclosure’ or ‘severability’ of information; time-specific life-span for exemptions are envisaged to turn the law a pro-disclosure frame.
Exemptions in RTI Acts of SAARC nations
The first law in this region, the Pakistan’s FOI Ordinance houses several provisions for withholding official information in the ‘public interest’. Information is exempt if its disclosure would invade the privacy of any identifiable individual (including a deceased individual) other than requester. The FOI Ordinance has a strange provision to “withhold public information even if its disclosure is in public interest.[45] Bangladesh Act has a lengthy list with 20 exemptions[46]. Maldives, too, though being a recent law, has listed a lot of exemptions spread over several sections[47]Afghanistan’s ATI law contains, besides legitimate exemptions, certain problematic exemptions too.[48] The RTI acts in India, Nepal, Bangladesh, exempt disclosure of information where it would legitimately harm the public interest[49]. These exemptions apply to information that would harm national security, foreign affairs, or commercial and trade relations. Mendel highlights the specific mention of the Indian law “that it takes precedence over the Official Secrets Act, 1923, presumably because it was recognized as being particularly problematical from a secrecy point of view.’’[50]
It would be of interest to know that the CLD (2015), while carrying out overall rating of the respective laws as per global norms, have awarded the following scores under the head ‘exceptions and refusals’ to RTI laws in SAARC network. The scores (out of 40): India – 26; Maldives- 17; Bangladesh – 20; Nepal -15; Afghanistan- 11; and Pakistan- 11. We note that Bangladesh which ranks below Maldives overall, has earned a better score on exceptions than Maldives. This may be due to the vast list of exceptions in Maldives Act In the case of Afghanistan and Pakistan, countries with vast differences in overall ranking, the score for both, on exceptions, are equal reflecting the scope and strict nature of exemptions in their Acts. In the case of other countries, the scores on exceptions also descend in accordance to their global ranks.
Public Interest Override: Megan Carter and Andrew Bouris (2006) observe that ‘most regimes which govern access to information held by governments are based on the same building blocks’ and offer a simple explanation to describe the mechanism of public interest override. It works as follows: ‘There is a general right of access to information held by public authorities; the right of access is subject to a range of exemptions and some of the exemptions are subject to a public interest test requiring the decision maker to take public interest considerations into account when deciding whether to release information even where an exemption applies prima farcie.’[51] Article XIX has also emphasized the need for incorporating public interest override stating that “such an override is essential to ensure that exceptions are not allowed to trump the overall public interest and to ensure that minor concerns are not abused to refuse access to information.”[52] The World Bank, in its Model FOI Law has also envisaged incorporation of a separate provision for public interest override.[53] Under India’s RTI Act, exempt information can be disclosed if the public interest in disclosure outweighs the harm to the protected interests.[54] Additionally, the Act states that, exemptions notwithstanding, ‘information that information that can’t be denied to Parliament or state legislature, can’t be denied to the citizen.’ Afghanistan and Maldives provide a contrast with the former having a provision for a general override[55] without a provision for overriding exemptions and the later Act provides for a general precedence to the RTI Act over other laws[56] while also incorporating a specific precedence of public interest in dealing with exemptions[57]. Bangladesh has a lengthy list of twenty exemptions, excluding noting on files even at the definition stage for ‘information’ and has no exclusive provision for public interest disclosure. Nepal too does not have specific provision for public interest override. It is to be noted that Nepal has only a short list of 5 categories of exemptions but has failed to have a public interest override. Pakistan Ordinance does not have any public interest override and is designed, as Rehman, (2006) considers it to “serve only as a vehicle for denying information instead of making it public.”[58] In the Pakistan ordinance, ‘reverse public interest test’ can be applied, ‘such that the Government can broadly refuse to disclose any other record from the purview of this Ordinance in the public interest’.[59]
Harm Test
Harm test is defined “as a formula for determining absolute exemptions”[60]. Legislations will usually state that certain information shall be exempted if it satisfies the harm test. The application of ‘Harm test’ is therefore intended to help decision making by demonstrating whether disclosure of information will substantially harm any protected interests. On this score, harm test has a prominent position in the exemptions regime. Toby Mendel (2008) has observed that “most laws have at least some exceptions that are not subject to a harm test” and holds that the harm tests have “an important bearing on disclosure of information”.[61] In his survey (2008) of Global laws, he mentions some of the frequent terminology used in this regard: “‘would be likely to prejudice’, ‘could lead to a negative result’, adequate reason to believe harm would result’ and ‘harm could reasonably be expected’”[62]. Among SAARC nations, India has a particular provision to apply harm test and deny information if it is likely to incite violence, communal tension etc. Nepal law has provided for making most of the exceptions subject to harm test but has not provided for the public interest override.[63] Nepal Act’s exemption regime has incurred a very negative appraisal under Art XIX [64] and Nepal’s harm test provision has also invited its criticism of being too rigid to the level of denying information.[65] Observing some later trends, Toby Mendel (2011) has come to remark that “many right to information laws contain exceptions which are not harm-based or which are overbroad, and which would, as a result, breach … standard.”[66]
Severability of information
In reality, the RTI law generally provides a ‘standard battery of exceptions to disclosure’. But that should not be taken to mean that the whole gamut under the cover of ‘exception’ is to remain under the veil. The provision of a ‘severability clause’, brings to citizens access to even classified documents, albeit with sensitive portions ‘blacked-out’ or ‘non-harming’ portions released. It is an internationally accepted good practice to provide to the public information or part of it that doesn’t harm any protected interest. Toby Mendel (2008) considers such an arrangement making “… obvious sense since the fact that some information in a document is confidential cannot of itself prevent disclosure of the rest of the document.”[67] India has a provision for severability of exempted information.[68] Pakistan has no such provision, whereas Bangladesh [69] Maldives[70] and Nepal Act [71] have severability clauses.
Time-Specific Exemptions
It is another good practice to introduce an overall time limit beyond which exceptions expire. “This kind of practice,” according to Article XIX, “ followed in many democracies, ensures that old archives become fully accessible to researchers once the information they contain can no longer cause serious harm to any current interest.”[72] India’s RTI Act has a limit of 20 years after which even exempted information could be disclosed. Afghanistan law has no such provision. Maldives, whose ‘exception’ regime is very broader has the longest life period of 30 years for exemptions. Nepal provides a similar (30 year) life span for protected information.[73] Nepal is the only country among SAARC group, to provide for the constitution of a Committee of Officials to classify protected information.[74]
Conclusion
The ideal RTI law shall provide powers of overriding other laws clearly and particularly those that are inconsistent with the provisions of RTI law ; shall have well defined, far shorter list of protected interests; put all of the exceptions subject to a harm test; apply the public interest override for disclosure while protecting legitimate privacy exceptions. This is a far cry in SAARC nations perhaps with the exception of India. The Indian RTI Act that ranks 3rd at the global level also has room for improvement and if carried out will be a model RTI law at the global level.
The main reason for lurking hesitation of governments to allow a liberal RTI regime in their jurisdictions is –in SAARC countries and elsewhere- as widely viewed, the culture of secrecy deeply embedded in the administrative hierarchy inherited from their medieval/ colonial past. The levels of literacy and poverty of people of countries in the SAARC group have also served as factors tolerating for long veiled transactions of government business. Political instability in Nepal, Afghanistan, Maldives, Pakistan and Bangladesh are also among causes for impacting the RTI scenario in the respective jurisdictions. The dominance of military in Pakistan, internal strife, economy in Afghanistan and uneasy political situation in Maldives are challenges for liberal RTI regimes in these countries. Mitigation of poverty; civil society enlightenment; encouragement of active, direct participation of people in public affairs; sea-change in the mindset of rulers towards RTI could gradually bring in desired levels of openness in government administration. Deficits in disclosures of information will continue up to a dawn of the culture of acceptance to the fact that information with government ultimately belongs to the people. When such a dawn turns a reality, the RTI regimes in SAARC region would stand ranking high in global esteem.
[1] *Chief Functionary, Forum for Good Governance (FFGG), Tiruchirapalli-620012, T.N. India,
[Email: [email protected]]
Limitations of the present study: All FOI/RTI/ATI Acts/Ordinance discussed in this paper are accessed through internet sources and the study is therefore grounded on content available therein. English translations of Acts, where original legislations are in other languages, as available in internet resources offered by Centre for Law and Democracy [CLD], Human Rights Initiative (humanrightsinitiative.org) are relied upon. For dates/years of enactments of Acts, data available in CLD Country data and data from freedomofinfo.org, has been adopted. The question of authenticity of content available/ accessed from internet sources, in the wake of some notable variations in their contents, looms over the present study.
The Author understands that a study of “exemptions” provisioned in the respective Acts is likely to be viewed as an exercise emphasizing more on the ‘legal architecture’, than on the other equally vital aspect, ‘implementation’. The main justification for this study stems from the acknowledged fact that the quantum, nature, crafting and language employed in dealing with exemptions in FOI/RTI Acts is the most debated aspect of such laws. Additional reinforcement of justification is derived from the reality that “exemptions”, due to their mischief potential, cause considerable deficits in disclosure of information. Moreover, we find that CLD, while ranking global FOI laws, accords equal weightage of scores both to “exemptions” and the other aspect, ‘implementation’
1 The number of countries with freedom of information laws or similar administrative regulations stands at 105, according to FreedomInfo.org’s running tally. See http://www.freedominfo.org/105-international-foi-regimes-freedominfo-org-count-show/ [Accessed on 10 March 2016]
[2] Mark Bovens, Information Rights: Citizenship in the Information Society, 10.J POL.PHIL317, 317-41 (2002), quoted in John M .Ackerman, Irma Sandoval-Ballesteros [See Note 5 below]
[3] There is an international trend,as Tony Mendel says, favouring RTI. See Tony Mendel, FOI A Compartive legal Survey, 2nd Edn, UNESCO, Paris 2008. [P3]. Like Tony Mendel, an increasing number of experts and commentators prefer using the term RTI [FOI will remain as the generic term for legislations.] [ See Also Queensland Report http://www.rti.qld.gov.au/__data/assets/pdf_file/0019/107632/solomon-report.pdf The Right To Inforamtion:Reviewing Queensland’s FOI, The Report by the FOI Independent Panel, 2008 [P 325]. In agreement with this proposal, the Author elects to use RTI to denote the law generally , save specific name(s) of the Act(s) discussed herein.
[4] The Queensland Report – see later part of Note 3 [P.72]
[5] John M. Ackerman &Irma E. Sandoval-Ballesteros, Global Explosion of Freedom of Information Laws, Administrative Law Review, 58 ADMIN.L.REV.85 (2006).
[6] See Note 3& 4 [P.72]
[7] See Citizens’ Access To Information In South Asia, Regional Synthesis Report, Asia Foundation, August 2014. [P.13]
Available at http://asiafoundation.org/resources/pdfs/CitizensAccesstoInformationinSouthAsia.pdf
[8] See Note 7 (P 15)
[9] See http://www.rti-rating.org/country-data (Accessed on 12 march 2016)
[10] Pakistan: Section 12(1); India: Section 3; Nepal: Section 3(2); Bangladesh: Section 4.Also see note 7 [P 25]
[11] Section 4(a) of Maldives RTI Act. See The Maldives, Comments on the draft Right to Information Bill
Centre for Law and Democracy [July 2010]
[12] Sections 4 & 6(1) (2) of Bangladesh Act; Supreme Court Decisions in India since S.P. Gupta case
[13] Section 6(a) (iv) of Maldives Act.
[14] Section 7(1) of Nepal Act .see Note 7[P. 26]
[15] Section 6 of Afghanistan ATI
[16] Section 5 of Afghan Act
[17] In India, any rejection will have to be as per Sec 8 & 9 of the Act
[18] Section 17 Pakistan FOI
[19] India: Section 22; Bangladesh: Section 3(b); Maldives Sec 3(1) (c); Afghanistan Section 32
[20] Section 37. See Note 7 [P.25]
[21] Section 5 Pak FOI Ordinance
[22] India: Section 4; Nepal Section 3 &5; Bangladesh: Section 6. Maldives Act Sec 37
[23] Pak FOI Ordinance
[24] Section 2 (b) (IV), (v) and (VI); Section 72 of Maldives Act.
[25] India: Section 24; Bangladesh: 32(1)
[26] Section 12 Pak Ordinance
[27] See Note 7 [P.28]
[28] Section 7(1), Nepal RTI Act
[29] Section 6(3) Indian RTI Act, Maldives Section 9(a) and (c)
[30] Section 8 Afghan ATI
[31] Toby Mendel, Freedom of Information: A Comparative Legal Survey, Second Edition, Revised and Updated, UNESCO: Paris, 2008
[32] Toby Mendel, Thoughts From the Panel, UNESCO Report 2011, Available at http://unesdoc.unesco.org/images/0019/001936/193653e.pdf (Access 3 March 2016)
[33] Toby Mendel cited above.
[34] See Not 5
[35] Toby Mendel, Freedom of Information: A Comparative Legal Survey, Second Edition, Revised and Updated, UNESCO: Paris, 2008]
[36] APAI 2011, Principle 2, 8; Article 19 2007, Principle 4.See http://reggov2014.ibei.org/bcn-14-papers/66-212.pdf
[37] See Note 3 [P 101]
[38] Prof. Maeve McDonagh, The public interest test in FOI legislation,
See www.right2info.org/…/eu-mcdonagh-maeve-the-public-interest-test-in-foi-legislation (Access 8Mar 2016)
[39] See Note 22
[40] See http://www1.worldbank.org/prem/PREMNotes/premnote93.pdf
[41] Quoted in World Bank Report. See Note 23
[42] Article XIX, The Public’s Right to know: Principles on FOI Legislation, June 1999. See Principle 4
[43] Article XIX Memorandum on The Draft Information Law of Yemen, (2009)
[44] Toby Mendel (2008) cited above.
[45] Section 8(i). See Note 4 [P 27].
[46] Section 7
[47] Sections 20 to 32
[48] Section 17 of ATI Act. Problematic sections 17(1) (a) ; 17 (1) (b)
[49] India: Sections 8 and 9; Nepal: Section 3(3); Bangladesh: Section 7
[50] See Toby Mendel (2008) cited above
[51] Megan Carter and Andrew Bouris, Freedom of Information: Balancing the Public Interest, Second Edn May 2006 (accessed through : https://www.ucl.ac.uk/spp/publications/unit-publications/134.pdf )
[52] Article XIX Memorandum on RTI of the State of Nepal .2008 .Available in https://www.article19.org/data/files/pdfs/analysis/nepal-rti-act.pdf
[53] The World Bank A Model FOI Law Section 22 “Public Interest Override; Notwithstanding any provision in this Part, a body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.
[54] Section 8(2)
[55] Section 32 ATI Act
[56] Section 3 ( C ) of Maldives RTI
[57] Chapter 7 of Maldives Act
[58] Rehman, I. (2006). Report on Freedom of Information Ordinance. In I. A. (ed.), Sapana: South Asian Studies Vol. XII-Media & Peace in South Asia (pp. 277-280). Lahore: Free Media Foundation.
[59] See Commonwealth Human Rights Initiative, ACCESS TO INFORMATION LAWS IN THE COMMONWEALTH COMPARATIVE TABLE – Section as per Section 8 (i) of the Ordinance.
[60] OECD (2010), “The Right to Open Public Administrations in Europe: Emerging Legal Standards”, Sigma Papers, No. 46, OECD Publishing. Available at http://dx.doi.org/10.1787/5km4g0zfqt27-en >
[61] Toby Mendel (2008) cited above
[62] Toby Mendel (2008) cited above.
[63] Country Report: Nepal Available at https://www.article19.org/resources.php/resource/38205/en/country-report:-the-right-to-information-in-nepal Access 3 March 2016.
[64] Article XIX memorandum on RTI Act of State of Nepal, 2008 -Available at https://www.article19.org/data/files/pdfs/analysis/nepal-rti-act.pdf [Access: 20 Feb 2016] – “The exceptions regime in the RTI Act is one of its weakest points and it fails to strike a careful balance between the right of the public to know and the need to protect other important individual and social interests.”
[65] Article XIX memorandum on RTI Act of State of Nepal, 2008 – “Article 3(3) (b) provides that information which “directly affects” the investigation, inquiry and prosecution of crimes shall not be released, which appears to be a considerably lower standard than ‘serious jeopardy’’.
[66] Toby Mendel (2011) UNESCO Report cited earlier.
[67] Ibid
[68] Section 10(1) of RTI Act.
[69] See Commonwealth Human Rights Initiative , ACCESS TO INFORMATION LAWS IN THE COMMONWEALTH COMPARATIVE TABLE
[70] Section 21 of the Act
[71] Country Report Nepal Article XIX report cited above
[72] Article XIX Memorandum 2008 on RTI Nepal (cited above)
[73] Section 27 (5) of Nepal Act.
[74] Section 27 (1) of Nepal Act
