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Right to information done right

  • The landmark RTI Act requires strict implementation

By Sumudu Chamara

Although various phenomena were assigned a prime value in different stages of the growth of the human race, information has now become the most valuable phenomenon contributing to the advancement of not only people’s lives, but also politics, society, and economy. Therefore, ensuring the citizens’ right to information (RTI) is a cardinal duty of a country that upholds democratic values.

This was stated by Cabinet Spokesman and Mass Media Minister Dullas Alahapperuma, while speaking about the State’s responsibility in protecting and strengthening the citizens’ RTI during a webinar held to mark International Day for Universal Access to Information 2021, which fell on 28 September.

Quoting an aphorism by American activist Ralph Nader that “information is the currency of democracy”, Alahapperuma said that ensuring the RTI becomes a duty of the State, as the RTI has a direct impact on the people’s lives and democracy.  

He added that every government has a duty to ensure that the RTI of citizens does not remain a mere law, but that it is put into action, and that the absence of adequate space for accurate information is tantamount to a breeding ground for the spread of false information. He also noted that the publicising of inaccurate information results in a bigger impact on the society than hiding accurate information does.

The discussion, organised by the Journalists for Rights organisation and moderated by Attorney-at-Law (AAL) Dulan Dasanayaka, was also attended by former Speaker of Parliament Karu Jayasuriya, former Deputy Mass Media Minister Karunarathna Paranawithana, Tamil National Alliance (TNA) Parliamentarian Shanakiyan Rasamanickam, RTI Commission Member and AAL Somapala Punchihewa, Transparency International Sri Lanka (TISL) Executive Director (ED) and AAL Nadishani Perera, and Nelumyaya Foundation Programme Director and RTI activist and AAL Radika Gunaratne.

Old laws vs. new laws

During the discussion, RTI Commission Member Punchihewa explained some of the bitter realities faced by the RTI Commission, despite having in place legal provisions enacted under the RTI Act No. 12 of 2016 as amended.

He said that the implementation of the RTI Act is a challenging task, even though it is a need of the hour, which was achieved through a struggle that spanned over 10 years and in the face of opposition from certain governments.

He added that even though public institutions usually give information without hesitation, around 5% of them do not, and that this is when the public has to seek the assistance of the RTI Commission. 

According to Punchihewa, despite the existence of laws to support the RTI Commission’s duties, public officials’ traditional attitudes which do not support the idea of giving the public access to information, and laws that can be used to hinder the implementation of the RTI Act, have affected the public’s ability to obtain information under the RTI Act.
Punchihewa noted: “Old laws did not permit giving information; however, the RTI Act allows it. Therefore, when the RTI Act came into effect, some public officials tried to find loopholes in the laws to refrain from giving information. This is due to their tendency to stick to the old laws and practices that do not support revealing information freely. In our legal system, even after a certain right is guaranteed through a new law, there are other laws that can supersede the new law. It is one of the characteristics of our law. There were difficulties in explaining who is entitled to the ownership of information. Public officials were under the impression that it is the Government or the authorities. Some still haven’t understood that the people own public information, but it is the public that appoints those governing the country and pays for their salaries.
“In some RTI cases, lawyers try to drag cases out based on and using old laws. Sometimes they try to prevent the person making the request from obtaining information, and sometimes they do it to buy time. These acts delay the process of providing information. Some try to claim that they do not have information in order to get rid of their obligation to provide information, and in some cases, they claim that they have destroyed the information (documents containing information). In around 50 instances, it was observed that some officials had developed a habit of refraining from giving information by taking time. When the RTI Commission pointed out that cases can be filed against the officer, not the institution, at Magistrate’s Courts, around 45 of them gave information that was not provided before.”

Explaining the loopholes in the laws, Punchiewa added that in one case, when the citizenship status of a person who had requested information had not been mentioned properly, the hearing of the case had dragged on for months. 

In this context, interpretations of the RTI Act need to be made further clearer in the future in order to ensure its proper implementation, as some try to find loopholes and evade their obligations, according to Punchihewa.

He added that the term “public interest” should be further interpreted in the future, in order to make the process of obtaining information smoother. He noted that a lot of limitations existing in laws are applicable to the RTI Act, and that the proper interpretation of the RTI Act’s provisions could be helpful.

“Many laws can be used to buy time and discourage the other party (as in a RTI case), and it should be addressed in various ways including the proper interpretation of the laws,” he said.
Meanwhile, former Speaker Jayasuriya, who presented the RTI Bill in 2011, said that with the enactment of the RTI Act, a huge change could be observed as far as transparency and accountability on the part of the Government are concerned. According to him, it also compelled public officials to act more responsibly.

He also said that even though the idea of RTI first emerged as far back as 1994, due to various reasons, the RTI Act was not enacted until the freedom to access information was recognised as a fundamental right (FR) by the 19th Amendment to the Constitution in 2015.

He noted the importance of taking measures to appoint completely unbiased people who have no affiliations to political parties to the RTI Commission.

Practical issues and proactive disclosure

During the discussion, MP Rasamanickam pointed out a number of practical issues pertaining to obtaining information through the RTI Act, even though, according to him, it has helped to reveal information pertaining to national-level matters.

He added that there were instances when requests for information were not entertained, and also instances where the requested information was received after a prolonged period of time. He noted that sometimes, by the time the requested information is received, the purpose for which the information was requested had developed into an unmanageable situation. He also pointed out the presence of political influence that hinders the process of obtaining information.

“Even the process of requesting information is a difficult process which takes time. During a pandemic, it takes even more time and the process is more difficult,” Rasamanickam noted, adding: “The existence of laws is not enough, if the implementation is not taking place properly. Therefore, steps need to be taken to expedite and streamline the process of obtaining information.”

During the discussion, both Rasamanickam and AAL Gunaratne noted that revealing certain basic information should not be based on special requests, and that public authorities should make such information publicly available.

The provision of information being based on a request, according to Gunaratne, is tantamount to forgetting the one significant aspect of the citizens’ RTI, i.e. the public authorities responsibility to provide basic information voluntarily. She added that emphasis should be given to this as well, not only the people’s ability to request information. She noted however that, so far, Sri Lanka had prioritised strengthening the public to request and receive information.

Explaining the public institutions’ role in the RTI, she added that when it comes to public information, the public authorities’ only duty is to maintain information. She added that taking that into account, more than the people, the public authorities should be made aware of the citizens’ RTI.

“Even though many benefitted from the RTI Act, all this time, there was a certain tension between the person requesting the information and the information provider. We see that there is reluctance among the officials and institutions that are required to give information, and that they act as if the person requesting the information is requesting the official’s personal information or something that belongs to them. We should be able to guide public authorities to proactively give basic information that can be publicised, without waiting for a request. Once a certain type of information is declared information that can be publicised, it should be made available without a request. If we continue to pursue reactive disclosure of information, it will take a long time for us to influence public authorities to provide basic information proactively, and voluntarily. As a start, public institutions can maintain and update their websites properly, and mention basic information about them, so that the public has to specifically request only the information that is not publicly available. As a result, the RTI Commission will have less work, and more time to intervene to ensure how public authorities should work to ensure transparency on the part of the State. The RTI Commission does a lot of work. But, what they have to do is consider appeals when a public authority fails or refuses to give information to the people. However, encouraging the authorities should also take place.”

Making the above-mentioned changes, according to Gunaratne, would reduce corruption, save money and time, and strengthen relationships between public institutions. 

RTI and stifling corruption

Meanwhile, AAL Perera explained the role of the RTI Act in curbing corruption. She noted basically that abusing the power given by the people to the authorities to perform public duties for personal advantages, is considered corruption, and that it comes in various forms such as bribery, fraud, commissions, nepotism, and money laundering.

She added that curbing corruption involves both preventing the occurrence of corruption as well as stopping ongoing corruption, and that in order to do that, ensuring transparency and accountability are necessary. This process, according to her, is supported by revealing all public information which leaves no room for corruption.

She added that what corrupt people do most of the time in order to hide their corrupt deeds is withhold information, or give information in a misleading manner, or give false information.

“Public institutions are bound to reveal information proactively, provide information requested by the people though RTI requests, and manage the provision of information properly. The RTI Act focuses on a number of matters which are more closely associated with corruption. Among them are projects, procurements, fund utilisation, approvals and certifications, appointments, accountability on the part of public representatives, and agreements with the private sector. The more power public institutions and officials have, the more prone they are to be part of corruption,” she added.

Meanwhile, former Deputy Minister Paranawithana said that the citizens’ RTI relies on two concepts. They are that the Government does not have anything to hide and that information on public affairs is a public property.

He noted that traditionally, there is a belief that information is not a public property, even though it is. He also explained that the attitude of some public officials is that it would be difficult to continue their public duties if there was an RTI Act, and that this is due to their guilty conscience. 

Adding that the fear those public officials have due to the abuse of power or irregularities cannot be addressed through the RTI Act, he noted that even though other laws are mainly for the people, laws relating to the RTI are for the public to keep public authorities under scrutiny.

“Another law is necessary to look into public figures’ behaviour and assets, and to keep public figures under public scrutiny,” Paranawithana added, noting that “even though such information can be given to the Parliament and the Presidential Secretariat, they are not bound to reveal such information”.

He opined that there should be a trend in society to request information and question the veracity of information.

As those who spoke during the discussion pointed out, the mere existence of laws is not adequate, and the implementation is what results in real change. 
The enactment of the RTI Act was a victory, as it is a law that had been ignored by governments for years. However, the challenges its implementation is facing now need to be addressed if it is to serve the intended result.