Updating the right to information process

Bangladesh drew the attention of the democratic world when we approved in the Jatiya Sangsad the Right to Information Act in 2009. It enabled us to demonstrate our commitment towards not only transparency but also accountability in the paradigm of good governance. The Act had several innovative aspects. However, there were also some areas that became source of controversy. Many analysts felt that they needed to be addressed.

As former Chief Information Commissioner, I have followed this debate for some time. Eventually, I have come across some interesting developments carried out in Finland (one of the first three countries to enact the process of Right to Information) in this regard over the last few decades.

In Finland, the Act on the Openness of Public Documents of 1951 established the openness of all records and documents in the possession of officials of the state, municipalities, and registered religious communities. Exceptions to the basic principle could only be made by law, or by an executive order for specific enumerated reasons such as national security.

The openness of unsigned draft documents was not mandated, but up to the consideration of the public official. This weakness of the law was removed when the law was revised in the 1990s. The revised law, the Act on the Openness of Government Activities of 1999, called in short "Publicity Act" also extended the principle of openness to corporations that perform legally mandated public duties, such as pension funds and public utilities, and to computer documents.

The Publicity Act establishes a process by which any person may access any record in possession of an authority. The person may ask the authority for the document in person or in writing. When making the request, the requester needs to specify the document so that it can be identified. However, the authority remains liable to assist the person with its document registers and indices in this task.

After receiving the request, the authority has two weeks to give the document. If the decision is negative, and document is withheld, the requester may appeal to the administrative court. The document may be given orally, for reading and copying in the authority's premises or as an electronic or paper copy, as requested by the person. However, the copying may be declined if it would be unfeasible because of the large number of documents or otherwise technically difficult. There are also a number of limitations on the release of electronic documents designed for the protection of individual privacy.

The reasons for withholding a document are listed in the Article 24 of the Act referred to above. They may be grouped to three categories: automatic non-openness, conditional non openness or conditional openness. In the third category, openness is a rule, and the reason for non-openness needs to be established by the authority.

The absolute reasons for non-openness are:

n Documents of the foreign policy committee of the Council of State, foreign policy memos of the foreign ministry on political status, negotiations with foreign governments or organisations and diplomatic cryptograms, unless released by the ministry,

n registers held by law enforcement for investigation and prevention of crimes, as well as passport or ID card photos and biometric information on them,

n statistics and other documents on economic policy that might affect financial markets, until they are released to public,

n documents containing a secret phone number, or the location of a mobile communications device, and

n documents containing information on individual's political opinions, hobbies, personal habits, membership and activities in associations, family life or opinions uttered within private life.

Conditional non-openness is mandated for the following categories of documents, unless it is "obviously clear" that the protected interest is not endangered:

n documents concerning criminal investigations or pending prosecutions until the investigation is over or the prosecution has pleaded, unless it is obviously clear that the investigation or the prosecution is not harmed and no private person will suffer material harm nor suffering,

n documents on security of buildings, facilities, communications or information systems, unless it is obviously clear that the security is not endangered,

n documents concerning national defence or military intelligence, unless it is obviously clear that national defence is in no way harmed or endangered, and

n documents concerning a refugee or an applicant for a visa, residence permit or an asylum, unless it is obviously clear that the person or his loved ones are not harmed.

Conditional openness is prescribed for the following categories of information:

n release of information about the technical and tactical methods of police, and prison authorities, if such availability of information makes the work of such authorities more difficult,

n information on financial, monetary, labour or fiscal policy measures or their preparations or pre-studies if the release would defeat the purpose of such measures, endanger the negotiation position of the state or otherwise and cause great harm to the management of such policies,

n detailed returns of political candidates on their campaign funding,

n documents used by a public body in a collective bargaining or labour action if the release would harm the public body as the employer,

n documents used for preparation of a legal action, if the release would harm a public body as a party to a suit, and

n documents containing sensitive information on the private life of a suspect, plaintiff, witness or other party to a criminal investigation, or information on the victim that would hurt the victim's memory or her loved ones, unless the release is necessary to conduct the work of an authority.

Non-open information in Finland also remains non-open for 25 years after it was created or obtained by an authority. Documents that are non-open to protect the privacy of an individual remain non-open for 50 years after the protected individual has died.

The above changes that have been undertaken in Finland could provide the requisite platform to relevant Bangladesh authorities in the undertaking of a review of the various facets of the Right to Information Act, 2009. This will be particularly relevant with regard to Sections- 7, 8, 9 and 32 of the existing Act.

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

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