Response To Call For Comments On Right To Information Bill

By Rohan Samarajiva -February 26, 2015

Prof. Rohan Samarajiva

As a public proponent of the Right to Information (RTI),[1] I support the enactment of Right to Information Act. The comments below are intended to improve the legislation, caution against over-reach, and make the law easier to implement effectively. I applaud the call for comments published in the newspapers on 23 February 2015 which is very much in the spirit of RTI.

I have based my comments on the draft Right to Information bill (LDO 24/2003), downloaded from Manthri.lk. I shall be pleased to comment on a different draft if such exists.

The objective of the Act as given in the preamble is to allow the people of Sri Lanka to “more fully participate in good governance and actively participate in combating corruption in the country’s public life.” The right that is to be created by the proposed Act is limited to official information that is in the possession, custody or control of a public authority (s. 2). However, in what appears to be a later insertion in the interpretation section, s. 40 defines a public authority as “a semi-public or private entity or organization rendering any public service,” thereby vastly expanding the scope of the proposed Act. This expansion creates possibly unresolvable ambiguities, money-making opportunities for lawyers and a host of potential negative effects for private individuals and organizations. It deviates from the objective of the Act. I urge the Committee to retain the conventional scope of the right to access information to government bodies and not to extend it beyond the commonly understood meaning of public authorities. In instances when a private for-profit or non-profit organization acts as the agent of government through a contract or similar instrument the obligations imposed on government may be extended to the activities performed in the capacity of agent. Here, it is necessary to minimize the compliance burdens imposed on organizations below a certain size, as defined by annual turnover.

• The term “public service” in s. 40 is undefined in the Bill. Possibly, this is because it cannot be precisely defined. One could claim that the act that I am engaging in at this moment, that of analyzing draft legislation and proving informed commentary thereon, is a “public service.” I am engaging in this activity as an individual and not on behalf of an organization. Does this bring me within the scope of the RTI Act as a “private entity” rendering a “public service”? This is obviously absurd. But it is well within what the proposed language permits.
• The above described absurd outcome may be avoided by striking the term “entity” from the definition of public authority under s. 40 and by providing a clear definition of a “semi-public or private organization.” It is true that striking the term entity will avoid potentially dragging in 20.3 million individual citizens within the scope of the Act, but is it possible to provide an unambiguous definition of a “semi-public or private organization,” especially in the context of the remainder of the interpretation section, which carefully defines in sub-clause (f) the companies that fall within the scope?[2] Does it make sense for sub-clause (f) of the definition given in s. 40 to exclude companies that are not under majority control of the government only to drag them back within the scope through sub-clause (g) of the definition on the ground that they provide a vaguely defined “public service”?Read More