Cabinet Must Release Information Without Directing To Ministries, Sri Lanka’s RTIC Rules

MARCH 7, 2022

Directing an immediate change to the practice of the Cabinet Secretary sending Right to Information applicants from one Ministry to another, to obtain information relevant to each Ministry even though the details are in the hands of the Cabinet Office, the Right to Information Commission (RTIC) has informed the Cabinet of Ministers that relevant information must be released by the Office itself, an Order handed down last month states.

RTI Commission in Sri Lanka

This was in response to an appeal filed by a trade union representing administrative officials which had complained that it had been trying to get details of salary schemes and details of payments to state officials in seven branches of government, including Customs, Surveys, Sports and Nursing for more than two years and that the Cabinet had been sending them from pillar to post. The Commission ordered the release of all the information.

The Order can be accessed here.

The Cabinet had justified its position before the Commission on the basis that the Ministries from which the information originated, knew more about the information asked for than the Cabinet and was better placed to make the decision to release the information or not. But dismissing this explanation, the Commission observed that the Cabinet must only be guided by the question as to whether the information was in its ‘custody, control or possession’ under Section 3(1) of the RTI Act.

That power cannot be delegated to others contrary to the RTI Act, the Commission said. It was also stated that the mere fact that the Cabinet had, by circular dated 2019.03.06, decided to transfer all requests for information originating from Ministries to that relevant Ministry did not amount to an amendment of the RTI Act and as such, cannot override Section 3(1).

It was further ruled that the Cabinet had accepted that it was a Public Authority under the RTI Act and was obliged to respond to the requests of citizens under the Act. The Office of the Cabinet was the guardian of all decisions including memoranda and ancillary material attached to the decisions of the Cabinet and had responsibilities under the Act that it was legally bound to discharge.

It has been further decided that, if the Cabinet fails to adhere by the Commission Order on or before March 7th 2022 (today), the RTIC would proceed to file a criminal prosecution in the Magistrate’s Court against the Public Authority and the Information Officer under Section 39 of the Act.

The Colombo Telegraph (CT) learns that the Commission has identified more than twenty Public Authorities (PAs) who are evading obeying Commission orders and that. instructions have been given to its legal officers to commence taking steps to prosecute such PAs in Court. Upon a prosecution under the Act against ‘any person’, the punishment can extend to two years rigorous imprisonment and/or fine of fifty thousand rupees.

Trade unions and media activists who had found it increasingly difficult to get information from the Cabinet previously, welcomed this decision stating that it made the process of getting information much easier.

The Commission comprises Commissioners, attorney and legal columnist Kishali Pinto-Jayawardena, independent nominee of the Bar Association of Sri Lanka, retired Justice Rohini Walgama independent nominee of the Sri Lanka Press Institute and attorney-activist Jagath Liyana Arachchi while its Chair is former Supreme Court judge Upali Abeyratne (nominee of President Gotabaya Rajapaksa). The fifth member of the Commission has yet not been appointed by the Government following the resignation of academic Athulasiri Samarakoon (nominee of the opposition backed National Movement for Social Justice) in December 2021 after serving for three days in his post. Samarakoon could not get leave from the Open University and have his academic salary continued while serving as an RTI Commissioner.

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