Different dimensions of Right to Information on the global platform

Observance of the International Right to Information Day, 2024 in Bangladesh was marked by the need to not only raise awareness about the Right to Information Act (RTI) but also to ensure proper implementation of the several dimensions of this Act. However, before moving forward one needs to refer to several dimensions and challenges regarding the implementation of the RTI process in Bangladesh and some other countries. In case of Bangladesh, Section 2 (f) of the RTI Act defines  'information' as including any memo, book, design, map, contract, data, log book, order, notification, document, sample, letter, report, accounts, project proposal, photograph, audio, video, drawing, painting, film, instrument done through electronic process, machine readable record and official activities of any authority. It is wide in terms of scope and intent.

Challenges that have been faced in implementing RTI Act 2009, Bangladesh include: (a) Rising over political partisanship; (b) Ensuring institutional capacity building of the IC with adequate financial and human resources; (c) Ensuring appointment of Designated Officers and Alternate Designated Officers in all public, autonomous and non-government offices; (d) Development of records management and web-based database for all public and NGOs; (e) Establishing community e-centres at all levels for easy access to development-related information and public services; (f) Boosting the demand side of RTI;  (g) Building local monitoring mechanism to oversee effective implementation of RTI; (h) Changing the attitude of the bureaucracy; (i) Voluntary disclosure of information and proactive updated disclosure through web-portals; (j) Deliberate denial should be subject to higher fines and good performance needs to be recognised and rewarded; and (k) Linking RTI with IT and digitalisation.

The exemptions are outlined in section 7 of our RTI Act. They include inter alia: information that may, if disclosed, cause a threat to the security, integrity and sovereignty of Bangladesh; information relating to foreign policy that may affect the existing relationship with any foreign country or international organisation; any secret information received from a foreign government; any information relating to intellectual property right; any advance information about income tax, government duties, the budget or changes in the tax rate; any advance information about management of financial institutions or changes related to exchange rate or interest rate; any information, that may, if disclosed, offend privacy of an individual or endanger his physical safety or of the public or due judicial process of a pending case including investigation; or any documents to be placed before the Cabinet. A Schedule vide Section 32 also enumerates that the provisions of the RTI Act would not apply (except with regard to information pertaining to corruption and violation of human rights) to certain State security and intelligence agencies involved in state security and intelligence gathering. Section 9 (4), however, tries to level the playing field by stating that whatever be the situation, if a request for information relates to the life and death, arrest and release from jail of any person, the officer-in-charge shall provide preliminary information thereof within 24 hours.

As is evident the challenges faced in Bangladesh will need greater understanding of the rest of the world, particularly how some developed countries are trying to overcome the challenges.

Let us now see how the European Union with its diverse membership is tackling the RTI issue.

Article 255 of the Treaty of Rome establishing the European Community, as amended by the Treaty of Amsterdam, grants citizens of the EU, right of access to documents issued by the European Parliament, European Council and the European Commission. Regulation (EC) No. 1049/2001 led the Commission to adopt on November 9, 2005 the 'European Transparency Initiative -- a drive towards more transparency. Article 255 concerns public access to documents. Article 5(2) of the Resolution adopted by the European Parliament on April 4, 2006 takes into account a judgment of the European Court of Justice and stipulates that Member States must give reasons when they request an institution not to disclose documents originating from them.

The EU institutions have, however, been given the leeway whereby certain public and private interests can be protected by way of exceptions. Article 2.2.3 of this Resolution nevertheless observes (with regard to the protection of personal data) that the current practice, blanking out names and other personal data in documents to be disclosed is 'too restrictive'. In Article 2.2.7, it has also been indicated that systematic disclosure of documents after specific events and well before the 30-year limit for opening the archives would be welcomed (except in cases where the documents pertain to judicial or quasi-judicial proceedings or public hearings and a final decision has not yet been adopted). In this context it has also been mentioned in Article 2.3.3 that Authority concerned has to 'carry out a concrete, individual assessment of the contents of the document' being sought. It may be noted here that France under its RTI process explains that 'personal data' means any information relating to an identified or identifiable individual (an identifiable person is one who can be identified, directly or indirectly), his Social Security number, his/her physical, physiological, mental, economic, cultural, fingerprint particulars, name and first name, date of birth, biometrics or DNA .

 We should try and find out as to whether in this digital world, we in Bangladesh, can also take similar measures.

In Japan, after more than 20 years of lobbying by Japanese citizen groups (academics and attorneys), opposition political parties and others, Japan's National Information Disclosure Law came into effect on April 1, 2001. This created for the first time a legally enforceable right of access to Japanese national government files. More than 4000 information disclosure requests were filed with national government agencies during the first week of the operation alone. Compared to the United States Freedom of Information Act (FOIA) or other FOI formats, language of the Japanese statute, however, greatly restricts the availability of many categories of important information and provides much broader discretion to officials in possession of files. Several special public corporations that provide basic public services are also outside the scope of administrative agencies subject to the statute. This has apparently been done to 'stop the risk of unjustly causing confusion among the people'.

The USA enacted the Freedom of Information Act (FoIA) in 1966 when President Lynden B Johnson signed it on September 6, 1966; 200 years after Sweden passed the Freedom of the Press Act, the first law on freedom of information in the world. The US law has been amended many times.

In 1996 President Clinton signed the Electronic Freedom of Information Act Amendment Bill that provided that records created by all federal agencies on or after November1, 1996 should be made available electronically and that electronic reading rooms should be made available to citizens to access records and increase the response time to 20 days from 10 days. An Executive Order also allowed release of previously classified national security documents more than 25 years old and of historical interest as part of FoIA. After September11, 2001, President Bush through an Executive Order dated November1, 2001 restricted access to the records of the former Presidents. On January 21, 2009, after his inauguration, President Obama used an Executive Order that again encouraged openness, transparency and accountability in government records without changing the Presidential Records Act.

However, since then as evidenced in the State of Maryland the number of exemptions on which public institutions do not have to provide information has risen from 6 to 132. The ongoing conflict in Afghanistan, the persistent instability in Iraq and the US difficulties of engagement in other areas of the Middle East and in Iran have contributed to the erosion of freedom in that country on the plea of national security and the need to combat terrorism.

In Australia the Freedom of Information (FOI) Act commenced in 1982 but has later been amended by the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010, enacted in May 2010.  Prior to 1982, the provision of access to information held by Commonwealth agencies was discretionary. There was no general obligation on agencies.

The amendments and reforms originating out of these measures have brought about important changes to the exemption provisions. They are now of two kinds-- the first group is the 'absolute' exemptions, to which no public interest test applies. This includes the exemptions related to Cabinet documents, national security, defence, international relations, law enforcement, legal professional privilege, trade secrets, and material obtained in confidence. The second group is the 'public interest conditional exemptions'. That includes exemptions for deliberative processes, agency operations, Commonwealth-State relations, personal privacy, business information, research and the economy. These exemptions cannot be invoked to deny access unless a decision is made that, in the circumstances, access to a document at that time would, on balance, be contrary to the public interest. In effect, there is a presumption in favour of access being granted. To guide agencies in deciding the balance of public interest, the Act lists factors favouring access and factors that are irrelevant.

Under the reform process, the open access period under the Archive Act, 1983 for all records has been brought forward from 30 years to 20 years (other than census records and cabinet note books).

One is encouraged to hope that our authorities, consistent with proper democratic governance, will confidently move forward and try to overcome the existing challenges in Bangladesh. Another step forward would be to limit the limitations. That will be greatly appreciated.

Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance.
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