The Draft Freedom Of Information Law

By R.M.B Senanayake -February 26, 2015

R.M.B Senanayake

Presently the media obtain information by contacting the Heads of Departments or the Secretaries of the Ministries. There is a Cabinet appointed Media spokesman. There is the Establishments Code which lays down restrictions on public officers who disclose information to the media. The Code is restrictive and the question arises how the new Law will affect these provisions in the Establishment Code. There are also the restrictive provisions in the Official Secrets Act. There is a clause in the draft law which says that its provisions shall prevail. But public officers are enquired not only to comply with the laws but also with the Establishment Code. It may be necessary therefore to amend the Establishments Code provisions. It may be desirable to make the Head of the Department the person responsible to implement the draft law and allow him to appoint the Information Officer while retaining his powers and responsibilities for the release of information to the public.

The Preamble to the draft Act says among other things that it is setting out the procedure for obtaining official information and for matters connected therewith or incidental thereto. This seems to imply that the draft law specifies exclusively for the procedure to obtain information. If so does it mean that the Heads of Departments cannot release information to the media but must direct them only through the Information Officer a relatively junior officer who will not be familiar with recent events and policy changes? If so the Media may be restricted in its access to information. Perhaps what is needed is to make clear the purpose of the new law as providing a right to information in addition to the present procedures followed by the Media in obtaining information and make I clear that the procedure enacted is not exclusive but is in addition to the media’s access to general news and information.

Clause 4 of the draft law lays down that every public authority giving a decision that affects any person in anyway shall be required on request to disclose the reasons for arriving at such decision. Presumably this applies only to the disclosure of information. But it is too vague and may cause problems for the

The clause 4 relating to Duty to Disclose reasons for a decision seems to be unnecessary for the reasons to be disclosed for refusal of information is covered in another clause5(2).Generally the drafting of the law requires another look by a professional legal draftsman.

The clause regarding the denial of access to information also requires streamlining. Under sub clause 5© certain economic information is not to be disclosed prematurely if they prejudice the interests of the economy. But it is not clear that such information should be disclosed later. Under this exception the authorities could withhold information for a long time on the ground that it would affect the economy adversely. For example the level of the Official Foreign Exchange Reserve may not be disclosed at all if it continues to fall. In 1996 Thailand’s Central Bank gave false Reserve figures and when a well known foreign investor realized it he began the outflow of capital which brought on the financial crisis in Thailand which led to its spread to other East Asian countries as well.

Clause 9 (1) refers to large projects where the Minister or President is required to provide information. This will apply to the future. What about the large projects undertaken by the previous regime where no information has been provided to the public and not even to Parliament. The Port City project is a case in point. Will the law be amended to include any on-going projects as well?

Clause 24 requires requests for information to be in writing. But the media who need information urgently lest I lose its timeliness should be allowed to contact the Head of the Department or the Information Officer to do so. This may be restricted to the media,

The Interpretation clause defines a “public authority” to include a private entity rendering a public service. Many private sector businesses provide services to the public. Are all of them to be brought under this law? It would adversely affect private sector businesses. The drafting of this clause also needs to be improved for unlike where a reference to a man can include a woman a public authority cannot mena a private entity even if it is restricted to one providing a pulic service for many private entities provide a service to the customers who are members of the public .