The Botswana Media Consultative Council (BMCC) notes with appreciation
that in its September 1997 report entitled "Towards Prosperity for
All", the Presidential Task Group for a Long Term Vision for Botswana,
or 2016 Commission, had among its conclusions that: "Botswana must
introduce a Freedom of Information Act to protect the rights of
citizens to obtain and use information." Our Council is prepared to
join hands with government and other media stakeholders in assuring
that this step is appropriately implemented.
This paper presents our organisation¹s initial views of why Botswana
should move forward with Freedom of Information (FOI) legislation, and
includes further suggestions on the possible shape of a final Act. The
BMCC is of the view that consideration of such legislation should
become a priority concern for the proposed Media Advisory Council,
which will hopefully be established as part of the forthcoming,
December 1998, Media Sector dialogue session at the Office of thePresident.
In our desire to move forward with the difficult task of formulating a
FOI Bill, hopefully to be submitted to Parliament by the year 2000, the
BMCC is of the view that the current of lack of such legislation
inevitably creates an environment which encourages unnecessary secrecy
in government. This in turn can lead to arrogance in governance and
defective decision-making, contributing to low productivity within the
civil service. The perception of excessive secrecy can also lead to
decline of public confidence in public institutions. We are of the
further belief that, after three decades of post-independence progress,
our democracy has reached a critical stage in which the public expects
much greater openness and accountability from government than was the
case in the past. After three decades of post-independence progress we
have reached a stage in which the establishment of a Right to Know can
become a gateway for further socio-economic progress.
We, the BMCC, would expect that any FOI legislation will be drafted so
as to encourage more open and accountable government by establishing a
general statutory right of access to official records and information.
In so doing it will provide Batswana, for the first time, with a new,
fundamental, Right to Know. This right has existed in Sweden since
1766, in the USA since 1966, in France since 1978, in Canada, Australia
and New Zealand since 1982 and in the Netherlands since 1991. A White
paper for a UK FOI was introduced at the end of 1997, while a Task
Force appointed by Deputy President Thabo Mbeki has been drafting an
"Open Democracy Bill" for South Africa since 1994.
The BMCC believes that Botswana, like South Africa and the UK, can
learn from the experience of those fellow democracies which already
have functioning FOI regimes. This paper thus incorporates a number of
proposals which reflect overseas experience. In particular we have
found the synthesised guidelines contained within the 1997 UK FOI White
Paper, which are generally consistent with other Commonwealth
legislation, to be an especially useful given our own constitutional
structures and legal traditions. For this reason we have opted for
using it as a model rather than the more venerable, time tested,
American act. While we were also attracted to the comprehensive nature
of the initial drafts of the South African draft Open Democracy Bill
we, whose objectives we applaud as a possible starting point for local
consideration, we ultimately found it to be the draft bill itself to
be excessively cumbersome and otherwise reflective of a legislative
tradition that in many ways differs from ours in its historically
Unfortunately, we have not had the time, resources, or expertise to
examine the Dutch, French or Swedish Acts in any detail. We recognise
that this is a serious omission on our part and would recommend that a
proper review of these non-Anglophone instruments be carried out as
part of any FOI process undertaken by the Advisory Council.
Notwithstanding our appreciation of various external approaches to FOI
alluded to above, we are nonetheless of the ultimate conviction that,
in building upon the groundbreaking efforts of the 2016 Commission, any
local legislation should be shaped as a result of a consultative
process that takes into account our nation¹s indigenous experience,
needs, and developmental status. It should, moreover, be understood
from the onset that the drafting of a FOI is a complex task that can
not be carried out without reference to both the current and potential
capacity of government to provide information. In order for it to
function properly there would be a need to overcome existing logistical
obstacles, as well as a natural reluctance of any organisation to make
itself more fully transparent.
Any FOI would furthermore also need to recognise such circumstances
where the withholding of information by government is appropriate.
These circumstances would include protecting the right to Personal
Privacy, as well as the broader interests of society including the
protection of the integrity of decision-making and policy advice within
the civil service and the need to prevent substantial harm to the
interests of the state in the areas of: National Security, Defence,
International Relations and Law Enforcement.
The need for privacy should be further respected in areas of Commercial
Confidentiality and where disclosure could compromise the Safety of
Individuals, the Public as a whole, and/or the Environment. In such
areas there would need to be a demonstrated overriding public interest
prior to disclosure.
The following is a list showing some areas which might be excluded or otherwise exempt within a local FOI regime if they would do substantial
harm to the interests of individual(s), organisation(s) and or the
state, and existing FOI regime countries in which these exemptions are
currently applied or, in the case of the UK, proposed:
Defence, Security and International relations: Australia, New
Zealand, Ireland, the Netherlands, USA, France, Canada, UK.
In ternal Discussion and Advice: Australia, New Zealand, Ireland, the
Netherlands, USA, France, Canada, UK.
Law Enforcement and Legal Proceedings: Australia, New Zealand,
Ireland, the Netherlands, USA, France, Canada, UK.
Effective Management of the Economy and Tax Collection: Australia,
New Zealand, Ireland, USA, France, Canada, UK.
Effective Management of the Public Service, Public Employment,
Appointments and Honours: Australia, Ireland, The Netherlands, USA,Canada, UK.
Unreasonable, Vexatious or Voluminous Requests: Australia, Ireland,UK.
Certain Research, Statistics, and Analysis: Australia, Ireland, USA,
Individual Privacy: Australia, New Zealand, Ireland, USA, the
Netherlands, France, Canada, UK.
Third Party Commercial Confidence: Australia, New Zealand, Ireland,
USA, the Netherlands, France, Canada, UK.
Information Given in Confidence: Australia, New Zealand, Ireland,
USA, the Netherlands, Canada, UK.
In addition to strengthening Botswana¹s democracy, we believe that FOI
will be both a powerful catalyst for greater productivity within the
public sector and a spur to public sector private sector partnership in
the interest of greater economic growth and social development. In this
respect it is the BMCC position that Botswana can only realise its long
term vision if both its public and private sector leaders embrace the
challenge of the rapidly evolving global information age.
In the above context the BMCC wishes to emphasise the fact that we
Batswana are already living in an era in which access to, and the
marketing of, information has become a primary engine in the creation
and distribution of wealth. We note that the government of world¹s
richest economy, the USA, has operated within the confines of an FOI
since 1966. Today agencies of American Federal, State and Local
government are known to be as proactive in providing information
through web sites on the internet as any commercial firm. The local
introduction of a FOI should be part and parcel of a broader
information policy for the new millennium.
II. FOI- a more detailed overview:
What is a FOI?Fundamentally, any FOI should provide for the public disclosure of
information held by Government. Thus, it allows access to all records
in custody of Government unless they are specifically exempted. Such
disclosure may be withheld when disclosure would cause harm to a
governmental function or the greater public good. Some commonly
recognised exceptions are: personal information which clearly invades
personal privacy; commercial trade information belonging to a private
entity which the Government has because of a contract or for regulatory
purposes; and information withheld for state security reasons; and
official investigatory files.
The enactment of FOI legislation would establish a presumption that
records in the possession of Government are accessible to the people,
i.e. the Right to Know. A FOI must set standards for determining which
records should be disclosed and which records can be withheld. It
should provide administrative and judicial remedies for those denied
access to records. Above all, such a statute requires Government to
provide the fullest possible disclosure of information to the public.
But, it should also be recognised that any FOI must also restrict the
improper disclosure of personal information and even provide for civil
remedies where an individuals rights have been violated. It should
apply to documents held by Government, Government controlled or
parastatal corporations and independent regulatory bodies. It could
also in certain situations be potentially applied to private companies
and persons who receive Government contracts or grants.
What should be the Objectives of a FOI Act?
The objectives of the Act should be to help open up public authorities
and other organisations which carry out public functions. Firstly, it
should empower people, giving everyone a right of access to the
information that they want to see. Secondly, it should place statutory
duties on the body covered by the Act to make certain information
publicly available as a matter of course.
The Right to Know would be exercisable by any individual, company or
other body to records or information of any date held by the public
authority concerned in connection with its public functions. Anybody
would be able to apply for information. Applicants should not need to
demonstrate or state their purpose in applying for information. All
requests should be considered equally on their contents, not on the
stated or presumed intentions of the applicant.
We further believe that, for a FOI Act to be fully effective, the
access right should be capable of a broad and flexible application. It
should cover both records and information. And the term "records"
should cover all forms of recorded information including electronic
records, tape, film and so on. Flexibility in these arrangements would
help both the applicant and the public authority. The applicant will be
able to specify the form of the record or information requested. The
authority would be required, in the first instance, to release
disclosable records or information in the form requested. But it too
will have flexibility to meet the request in a different form if this
would be more in keeping with the requirements of the Act or if exact
compliance would involve disproportionate cost or effort. Or it could
decide to make a charge reflecting the cost of meeting the application
if necessary.In line with proposed UK legislation, the BMCC proposes that any
refusal to supply information or records in the form requested should
be appealable to an independent arbiter or "Information Commissioner",
who would need to take into account such factors as the technical
feasibility of meeting the request, and other discretionary cost
thresholds relating to the provision of information. If problems of
disproportionate cost look likely to limit significantly the extent to
which individual public authorities are able to provide information
under the Act, there will be scope for them to agree to procedures with
the Information Commissioner to provide it in a more cost-effectiveform.
The access right should apply to records of any date, regardless of
whether they were created before or after the Act comes into force.
There might be ground for limited exceptions to this principal, for
example if the new FOI Act incorporates and supersedes certain existing
statutory access rights which themselves only give access to records
after a specified date. Eventually, records held by many public
authorities reach an age -normally 30 years - where they become subject
to the criteria governing historical records.
The access right should apply to recorded information that the public
authority concerned already holds. It does not have to have originated
this itself. If an authority does not hold the information requested,
it could choose to obtain it for the applicant, but would not be
legally obliged to do so.
Many public authorities within the scope of the Act will hold records
of various sorts that do not relate directly to their public functions.
For example, individual authorities may hold private or personal
records. Commercial organisations carrying out public functions will,
naturally, hold many other records relating to their separate
commercial operations. Such records would not be available under theAct.
Our Freedom of Information Act should become a catalyst for Botswana¹s
public institutions to practice greater openness. In this respect,
responsible legislation should have a far greater impact than any
voluntary or discretionary system. Experience overseas shows the
importance of changing the culture by requiring active disclosure, so
that public authorities get used to making information publicly
available in the normal course of their activities. This helps ensure
that FOI does not simply become a potentially confrontational
arrangement under which nothing is released unless someone has
specifically asked for it.
We believe it is important that further impetus is given to the
pro-active release of information. Any Act should impose duties upon
public authorities to make certain information publicly available, as a
matter of course. These requirements should be consistent with the
other provisions of the Act - including the establishment of public
interest and harm tests.What is a Freedom of Information Act not intended to do?
The BMCC recognises that a FOI Act is not appropriate for certain
purposes and that the legislation should exclude certain limited
categories of information held by public authorities.
First, it is not intended as an aspect of public sector employment law.
It is not therefore intended that the Act should cover access to the
personnel records of public authorities by their employees. This should
also apply to records held for recruitment and appointments. The
important distinction here is between the rights of individuals as
members of the public to official information, and the different
relationship between public sector employees and their employers.
Allowing civil servants and other public sector employees a right of
access to their personnel files under FOI Act would, among other
things, result in public and private sector employees having different
Second, FOI should not undermine the investigation, prosecution or
prevention of crime, or the bringing of civil or criminal proceedings
by public bodies. The investigation and prosecution of crime involve a
number of essential requirements. These include the need to avoid
prejudicing effective law enforcement, the need to protect witnesses
and informers, the need to maintain the independence of the judicial
and prosecution processes, and the need to preserve the role of the
criminal court as the sole forum for determining guilt. Because of
this, the Act will exclude information relating to the investigation
and prosecution functions of the police, prosecutors, and other bodies
carrying out law enforcement work such as the Directorate of Crime and
Economic Corruption or the Department of Immigration. The Act should
also exclude information relating to the commencement or conduct of
Third, FOI should not disadvantage the government in litigation. For
this reason, the Act will not cover legal advice obtained by the
government from any source or any other advice within government, which
would normally be protected by legal professional privilege.
What documents could be requested under the FOI?
FOI legislation usually provides that a requester must ask for existing
records rather than information. This means that a government
department is only required to look for an existing record or document
in response to a specific FOI request. The department is not obliged to
create a new record, collect information it does not possess, perform
research or analyse data for a requester. Any item containing
information that is in the possession, custody, or control of a
department is usually considered to be a department record. The form in
which a record is maintained by a department does not affect its
availability. A request may seek a printed or typed document, tape
recording, map, photograph, computer printout, computer tape or disk,
or a similar item.
As noted above there are a variety of reasons why records may be denied
under a FOI. In such circumstances a department might refuse to
disclose, in whole or on part. We wish to here emphasise that, when a
record contains some information that qualifies as being exempt from
FOI disclosure procedures, the entire record need not necessarily
withheld. Instead, an FOI can specifically provide that any reasonably
segregable portions of a record must be provided to a requester after
the deletion of the portions that are exempt. This is a very important
requirement because it prevents the withholding an entire document
simply because one line or one page is exempt.
The BMCC believes that Freedom of Information, as a fundamental element
in the 2016 Vision for our nation, and a tool to modernise, open up,
and encourage greater productivity in government, should have very wide
application. It should be applied across the public sector as a whole,
at the national, and district/local levels. It should thus cover all
Government Departments and parastatal corporations; not excluding the
administrative functions of the Courts, including Customary Courts;
Local Authorities; Government Schools, including tertiary institutions;
the Public Radio and Television Broadcasters if autonomized in future
(a development that the BMCC strongly favours); private organisations
insofar as they carry out statutory functions; any privatised, as well
as parastatal utilities.
In addition, FOI provisions will be applied to information relating to
services performed for public authorities under contract. Appropriate
requirements will be included in the individual contracts between
public authorities and contractors.
The Act need not cover certain public bodies who, because of the nature of their role, could be completely excluded from the Act. These could
include Military Intelligence and other bodies with a recognised state
security role requiring secrecy. In this respect any FOI legislation
would have to be harmonised with existing and future National Security
legislation. In this respect it is the BMCC recognises the need for a
National Security Act, but takes the position that the existing Act
should be reviewed and amended where its provisions unnecessarily
impinge on the existing fundamental rights, including freedom ofexpression.
Parliament, whose deliberations are already open and on the public
record, could also be excluded in line with the "Westminster" ideal of
the separation and sovereignty of the legislative houses. At any rate
the Act should contain a list, showing which public authorities and
other organisations are covered, so that there will be no ambiguity
about which bodies are included and which are not. This list could be
published as part of the draft Bill. Such a list would need to be
amended from time to time as public bodies are created or disbanded, or
their functions in part transferred different bodies. The Act should
provide for this with an order-making power to allow the list to be
kept up to date. Possible "Gateway" procedures governing access to information
The BMCC believes that any FOI Act must be open, fair, straightforward
and simple to operate both from the point of view of the applicant and
of those who hold the information. The bodies covered by the Act will
be expected to act reasonably and helpfully when applying the
qualifying "harm tests" described below.
For Freedom of Information legislation to operate effectively, it is
necessary to include within it from the outset some basic tests of
reasonableness on applications for information. We have followed the UK
example in terming these as "Gateway" provisions in this paper. Said
provisions are intended to give an applicant rapid entry into the FOI
process by- on the one hand- encouraging applications which are
reasonable and practicable for public authorities to deal with and- on
the other hand- encouraging the authority and the applicant to
co-operate in this process.
In most cases the Gateway process should simply be a matter of ensuring
that the request is well-formed and clear; but the tests of
reasonableness will also serve as the FOI equivalent of the procedures
preventing the law being misused by vexatious litigants. There are
external examples of individuals making hundreds or even thousands of
requests to public authorities. This has persuaded us that some such
provisions are necessary but that they should be carefully drawn so as
to not obstruct genuine requests for information.
Applications for information covered by the Act should normally
progress to the point where they are assessed against the harm and
public interest tests.
Circumstances where public authorities could deal differently with
applications would include:
Applications for information which has already been published and is
still reasonably available. Disclosure could be refused, but
information to help identify the existing publication should be given
to the applicant; applications for information which will be, or is
intended to be, published at a future date. Here the public authority
would need to give an indication of the plans for publication.
Applications which are not specific enough to provide the relevant
authority with a reasonable indication of what is being sought. The
authority would, in the first instance, need to indicate the nature of
the problem and invite the applicant to be more specific.
Large-scale "fishing expeditions" or other applications which would
result in a disproportionate cost or diversion of public resources in
order to identify collect, or review the required records. The
authority would need to give an indication of why the application
caused this problem or - if it intended to meet the application but at
a significant charge - the likely cost to the applicant of doing so.
Multiple applications from the same source for related material in
order to avoid the previous restriction. Public authorities would have
flexibility in such cases over how they treated such applications for
charging and cost threshold purposes; large multiple applications for
similar information from different sources which are clearly designed
to obstruct or interfere with the public authority's business. Here,
authorities would clearly have the option of publishing the information
at an early stage in the process, thus avoiding the need for repeated
disclosure to individuals.
In general, the object should be for the public authority to be helpful
in dealing with problematic requests so that, if possible, the
applicant can obtain the information he or she seeks by one means or
another. Where this is not possible, an applicant should normally be
able to appeal to the Information Commissioner. There may also be scope
for the Commissioner to mediate - whether formally under the Act or
more informally - where an authority and an applicant have failed to
reach agreement on what constitutes a valid application. Who Should Pay for FOI?
Because it puts public authorities and the information they hold at the
service of the people any FOI process will have financial costs. That
is particularly so with an Act that will cover all past as well as
current records. This is not a reason for refusing to have FOI. But it
is a reason for examining the cost carefully.
Every major FOI regime in the world contains provisions for charging -
requesting payment from the applicant in certain circumstances,
depending on the type and amount of information supplied. Some also
have provision for flat-rate "entry fees" to use the different services
provided under the Act.
In considering what fees and charges structure would be most
appropriate for a local FOI, it should be further recognised that,
unlike the other nations cited in this paper, Botswana remains a
developing country. We therefore believe that it is only reasonable
that the fees charged should be set so as to assure an aggregate cost
recovery of not less than 60%. This should further be done through a
payment structure which reinforces the "Gateway" tests set out above by
deterring frivolous requests and encouraging responsible use of theAct.
On this basis, we propose that: public authorities covered by the Act
should be able to charge an access fee per request (to be determined);
but that only limited additional fees will be charged for access to
review and appeals procedures.
III. The Right to Know and the Public Interest, Some Guidelines
Decisions on disclosure under the FOI Act should be based on a
presumption of openness. Public authorities will therefore need to
start by assessing the effect of disclosing, rather than withholding,
the information. It is important, both for the authority itself, and
for the applicant, that this assessment is as simple and
straightforward as possible.
In our view, it is right that the test for disclosure under FOI should
be based on an assessment of the harm that disclosure might cause, and
the need to safeguard the public interest. Our proposals for doing this
are designed to make decisions on disclosure - which in some cases will
be complex and sensitive - as simple as possible to understand both by
those required to make the decision, and by the applicant who is
seeking information. In particular, the harm test should give an
indication of the degree of harm which is likely to justify protecting
information relating to a particular interest. And an attempt should be
made to set out how a decision on the "public interest" can be made.
How decisions on disclosure will be made- The substantial harm test
We believe the harm test to determine whether disclosure is to be
refused should be set in specific and demanding terms. We therefore
propose to move in most areas from a simple harm test to a substantial
harm test, namely will the disclosure of this information cause substantial harm?
In order to assess the circumstances in which substantial harm might be
caused by disclosure, those using the Act will need to have a
reasonable idea of the scope of each specified interest. So the FOI
Bill should set out, to the necessary extent, particular factors in
respect of each interest. Those considering applications - including
the proposed Information Commissioner - should have regard to such
factors when deciding whether a disclosure would cause harm or
substantial harm to any one of them.
The Bill should also make clear, that such harm could in certain
circumstances be caused by the cumulative effect of numerous
disclosures of similar material over a period, as well as by a single disclosure.
Proposed key interests limiting disclosure
We propose seven such areas of interest:
National security, defence and international relations:
of information whose disclosure could damage the national and
international interests of the State is a key requirement of an FOI
Act. The integrity of communications received in confidence from
foreign governments, foreign courts or international organisations
should be protected.
Protection in this area is common to all FOI
legislation. The Act should not undermine the investigation,
prosecution or prevention of crime, or the conduct of civil
proceedings, and these functions of public authorities should be
excluded from the Act. Beyond this however, there can clearly be no
obligation to disclose other information which could substantially harm
the effectiveness of law enforcement or encourage the avoidance or
evasion of tax and other financial obligations owed to the State.
The right of the individual to personal privacy is
a fundamental human right. Protection against disclosures which could
substantially harm this right is an essential element of an FOI regime.
At the same time, the right to personal privacy cannot be absolute-
there may be circumstances where disclosure of personal information may
be in the public interest. Such cases could well raise difficult
choices between the potentially conflicting interest of the individual,
the applicant and the public authority holding the information. This is
an issue which an FOI Act may need to acknowledge through a mechanism
to allow third party appeals against impending disclosure.
Relations between public authorities and the private sector need to rest on two-way openness and trust. There will of course be information - like trade secrets and sensitive
intellectual property or data- where disclosure would substantially
harm the commercial interests of suppliers and contractors. This might,
in certain circumstances, apply to the commercial interests of the
disclosing authority itself - we are mindful that the Act's proposed
coverage should include public and parastatal industries, executive
public bodies with significant commercial interests, and some private
bodies in relation to any statutory or other public functions which
they carry out. But we believe that openness should be the guiding
principle where statutory or other public functions are being
performed, and in the contractual arrangements of public authorities.
For example, ideally unsuccessful bidders should be able to learn why
they were unsuccessful and how they could succeed next time. For the
public, it is important to know how much government services cost, no
matter who provides them. Commercial confidentiality must not be used
as a cloak to deny the public's right to know.
The Safety of the Individual, the Public and the Environment:
Protection should exist for information whose disclosure could pose a
significant threat to the health and/or safety of an individual person,
the public more generally, or the environment.
Information Supplied in Confidence:
Many public authorities hold
information supplied to them by private individuals, companies or other
organisations in the expectation that it will be kept confidential.
Much of this is personal information or commercially sensitive
material, in which case the relevant specified interests will apply.
But there may be other circumstances where an obligation of
confidentiality exists: for example the views of experts given freely
on the understanding of confidentiality, or opinions expressed about an
individual in references for appointments or citations for honours. In
taking forward proposals in this area, we will have regard to the law
of confidentiality. As the Act will cover information and records of
any date before it comes into force it will be particularly important
to ensure adequate protection for people or organisations whose
communications with public authorities were covered by explicit
undertakings of confidentiality, or at least a reasonable expectation
that the law of confidentiality applied to them.
The Integrity of the Decision-making and Policy Advice Processes in
Government inevitably needs space and time in which to
assess arguments and conduct its own debates with a degree of privacy.
Essential governmental functions of planning ahead, delivering
solutions to issues of national importance and determining options on
which to base policy decisions while still maintaining collective
responsibility, can be damaged by random and premature disclosure of
its deliberations under Freedom of Information legislation. As a
result, high-level decision-making and policy advice are subject to
clear protection in all countries, sometimes taking it outside the
scope of the legislation altogether - for example in Canada, where
"Cabinet Confidences" and related information are excluded from that
country's Access to Information Act. This leads us to propose a
modified, straightforward harm test in this area. Factors which would
need to be taken into account in determining whether this test would
prevent disclosure of information are likely to include: the
maintenance of collective responsibility in government; the political
impartiality of public officials; the importance of internal discussion
and advice being able to take place on a free and frank basis the
extent to which the relevant records or information relate to decisions
still under consideration, or publicly announced.
As noted above, we see the use of harm tests as being based on the
contents, not the nature, of the records or information requested. In
framing our proposals on decision-making and policy advice, we see the
factors determining the harm test here as likely to apply particularly
to high-level government records such as Cabinet papers, Ministerial
correspondence and policy advice intended for Ministers, whether from
government departments or other public bodies. Protection of this
interest may well also be necessary for other records such as
confidential communications between departments and other public
bodies. But all potential disclosures should be decided on the basis of
the information in question, against the requirements of the Act.
Safeguarding the public interest
Applying the harm test is an essential element of any decision on
disclosure. But there is a risk that the results of applying that test
may not necessarily be consistent with the public interest whether the
outcome is to disclose or to withhold information.
Elsewhere, consideration of the "public interest" has become an
increasingly important aspect in decisions - in both legal and
non-legal contexts- of disclosure of information. It can, in certain
circumstances, be critical in deciding whether information should be
disclosed or withheld. We believe it to be an essential element in
determining the right to know.
No single factor can be said to constitute the "public interest", nor
can the outcome of conducting a public interest test be predicted in
advance: a case-by-case approach will be necessary. We believe,
however, that public authorities can seek to ensure that decisions
under FOI safeguard the public interest first by checking: that the
preliminary decision on whether or not to disclose, resulting from the
substantial harm test, is not itself perverse. For example, would a
decision not to disclose particular information itself result in
substantial harm to public safety, or the environment, or the
commercial interests of a third party?
The right to, and protection of, personal information
The Freedom of Information Act should give individuals a statutory
right of access to the personal information about them which is held by
public authorities. In most other access to personal information has
proved to be one of the most popular and widely-used aspects of Freedom
of Information legislation.
The BMCC is of the view that Freedom of Information should, in most
cases, apply to all personal data held by public authorities and other
relevant organisations, whether on computer or on paper files. We
believe that the access regime for ones personal data should be as
simple and helpful as possible for the applicant.
Conversely, any Freedom of Information Act must provide adequate
protection for an individual from any unwarranted invasion of personal
privacy caused by an application from a third party. Any provision for
a third party right of appeal should, furthermore, allow an individual
to be consulted in cases where his or her personal information privacy
might be affected by an FOI application. In this context the Act should
ensure that, except where other statute requires, third parties do not
have a right of access to information about an individual if the
individual is denied that right.
IV. Proposal for an Independent Review mechanism, an Information
Commissioner, and a two stage appeal process.
Independent Review overview:
The case for an independent review and appeals mechanism under the
Freedom of Information Act is twofold. First, cases involving the
disclosure of information are often complex and sometimes require fine
judgements to be made on whether the public interest in disclosing
information should or should not prevail over a competing public
interest in withholding information. There is a clear need for an
expert review body to exercise such judgements. Secondly, it is the
right of appeal that will effectively guarantee and enforce people's
right to know under the Freedom of Information Act.
The importance of independent review and appeal is recognised
internationally through the provision of different types of appeals
mechanisms, whether an Ombudsman, a tribunal or a specially designated
Commissioner. The BMCC is of the view that a procedure for independent review and
appeal is essential to the success of any Freedom of Information Act.
We favour a mechanism which is readily available, freely accessible and
quick to use, capable of resolving complaints in weeks not months. We,
therefore, propose a two-stage system of appeal. An internal review
stage will be formalised and a new independent Information Commissioner
will be given wide-ranging powers. The Commissioner will be able to
challenge authorities which refuse to release records and information
which are subject to the Act. The Commissioner will have the power to
order disclosure. As an independent office holder the new Commissioner
could be answerable to the courts for his or her decisions. In this
way, the appeals system will be (and will be seen to be) independent
and in particular not subject to any form of political override which
might ultimately be used to resolve contentious cases in favour of the
Stage 1 :
We propose that internal review should be the first step in the FOI
appeals process. It should provide a quick, low cost and simple
mechanism for resolving many complaints. It should also ease the burden
on the Information Commissioner, leaving him or her to concentrate on
more complex cases. An internal review should be carried out by an
official who was not involved in the initial decision and be completed
within a specified time-scale.
Generally, an internal review should be a precondition for making a
complaint to the Information Commissioner. However, the Commissioner
will have the discretion to accept a complaint which has not become
subject of an internal review, for example, where: a complaint concerns
unreasonable delay in dealing with an initial request for information
or in conducting the internal review itself.
Stage 2 :
Appeals to the Information Commissioner
The new Information Commissioner will have a key part to play in
promoting, interpreting and enforcing the Freedom of Information Act.
The Commissioner will not have any locus where the information
concerned is not covered by the Act. His/her task will be to
investigate complaints that a public authority has failed to comply
with the requirements of the Act either by refusing to disclose
information, or by taking an unreasonable time to respond to requests,
or by imposing excessive charges for information. He or she will be
expected to resolve such cases as quickly and informally as possible.
In a similar vein, the Commissioner will also hear appeals relating to
access to historic records.
In addition, the Information Commissioner could: publish an annual
report to Parliament on the operation of his or her function and the
operation of the Act more generally; publish reports on the outcomes of
investigations and issue best practice guidance on the interpretation
of the Act; and promote greater general public awareness and
understanding of the Act.
The proposed Information Commissioner should have wide-ranging powers
to carry out the above functions effectively: the power to order
disclosure of records and information which are subject to the Act.
This is an essential guarantee of the Commissioner's role in ensuring
that public authorities fulfil their duties under the Act. The
Commissioner could require disclosure of whole records, or of part of
them with sensitive material deleted, or of extracted information as
appropriate; the right of access to any records within the scope of the
Act and relevant to an investigation; the power to review and adjust
individual charges or charging systems, or to waive a charge if
disclosure is considered to be in the wider public interest. For
example, the Commissioner might consider that there is a compelling
public interest in disclosure which could go by default if the
applicant could not afford to meet the charge being levied; the right
to resolve disputes via mediation. Mediation should enable less
complicated appeals to be resolved quickly at minimum cost, without the
need for a formal enquiry.
The Information Commissioner will also be allowed to report any failure
by a public authority to comply with a disclosure order, or to supply
records relevant to an investigation, to the court. Such cases would be
treated by the court in the same way as a contempt of court.
There have been cases overseas where public officials have deliberately
altered, destroyed or withheld records from review. Although such cases
are rare, we believe that the public's right to know established under
the Act should be properly safeguarded. We would therefore allow the
Information Commissioner to apply for a warrant to enter and search
premises and examine and remove records where he or she suspects that
records that are relevant to an investigation are being withheld.
Right of appeal beyond the Information Commissioner
We do not propose that there should be a right of appeal to the courts.
However, a disclosure order of the Information Commissioner (or a
decision not to grant an order) would be subject to judicial review. We
have decided to take this approach because we believe it to be in the
best interests of the FOI applicant. Overseas experience shows that
where appeals are allowed to the courts, a public authority which is
reluctant to disclose information will often seek leave to appeal
simply to delay the implementation of a decision. The cost of making an
appeal to the courts would also favour the public authority over the
individual applicant. Ministerial vetoes?
In a number of countries with FOI legislation, Ministers are given the
discretion to override the disclosure powers of the appeals body. For
example, they can certify that particular documents lie outside the
appeals process or they can veto a finding of the relevant Ombudsman.
We have considered this possibility, but decided against it, believing
that a government veto would undermine the authority of the Information
Commissioner and erode public confidence in the Act. We believe that
our proposals strike the right balance between the sometime competing
public interests in disclosing and withholding information.
Third party rights of appeal:
Public authorities hold a great deal of information concerning
individuals, companies and other organisations (referred to
collectively as "third parties") which will be potentially releasable
under the Act. Consideration should, therefore, be given whether a
mechanism should be established to allow third parties to appeal
against decisions to release information which they believe would cause
"substantial harm" to their interests and, if so, what structure the
mechanism should have. The need for such appeals is most likely to
arise in the areas of personal privacy, commercial confidentiality, or
when the information requested was supplied in confidence by the thirdparty.
V. Public records/archives
A Freedom of Information Act will have a considerable impact on
our public records system. Government records of historical value are
selected for permanent preservation and, when they are 30 years old,
they are made generally available through the Botswana National
Archives. In this context "Records" includes not just written ones but
records in any form, for example e-mail. In this respect attention must
be paid to the need to harmonise any FOI Act with all other existing
Acts and regulations which currently govern research and documentation.
In the above context the BMCC is of the view that present statutory and
non-statutory rules governing access to historical material is
unnecessarily restricted by, among other things, the current procedures
governing the Anthropological Research Act. We therefore propose that
modified rules relating to access rights to historical records be
incorporated into the FOI Act. This does not mean that exactly the same
access provisions for current records will apply to historical records.
Those for historical records will reflect the fact that their
sensitivity has decreased due to the passage of time. In moving toward
a unified Act, we want to take the opportunity to improve the public's
right of access to historical records.
As noted above, at present, historical records are generally made
available to the public- at the Botswana National Archives- after 30
years. We do not propose to change this time frame, which is in line
with international practice. In particular, we do not think that
meeting the considerable costs of reducing the 30 year rule for all
historical records would constitute the best use of scarce publicresources.
Instead, we believe, more records should be released before 30 years.
Fewer records will be withheld for the full 30 years. This will mean
that 30 year old records will generally be of a greater sensitivity
than before. We think it right therefore that the threshold date should
be set at 30 years, a period long enough to enable the great majority
of these historical records then to be released to the public.
We would further note that FOI Act can only be as good as the quality
of the records which are subject to its provisions. Statutory rights of
access are of little use if reliable records are not created in the
first place, if they cannot be found when needed, or if the
arrangements for their eventual archiving or destruction are
inadequate. The fast-growing use of IT will further increase pressure
on the records system. We therefore propose to place an obligation on
departments to set records management standards which take these
changes into account, having regard to best practice guidance drawn up
by the Botswana National Archives.VI. The Challenge of Open Governance
Openness does not begin and end with a Freedom of Information Act.
Overseas experience shows that statutory provisions need to be
championed within government itself if openness is to become part of
the official culture rather than an irksome imposition. We believe that
this sort of culture change has taken place in other countries- Sweden
and the USA being notable examples. We see no reason why it should not
also be possible in Botswana, despite a more entrenched culture of
secrecy rooted in the era of the British Protectorate.
For most public authorities, a Freedom of Information Act will bring
with it substantial new obligations. This is all the more likely, given
the very wide intended coverage of the Act. Arrangements for phasing-in
through the progressive extension of the Act's provisions to all
sectors and all different types of information as may be necessary.
In addition, a number of key tasks must be undertaken if we are to make
an FOI Act the beginning of a real culture change:
The general public will need a user-friendly "How to use FOI" guide
(preferably printed in Setswana, as well as English).
The public authorities covered by the Act need to be encouraged and
helped to fulfil their obligations to pursue active openness - for
example publishing internal manuals, performance indicators, giving
reasons for decisions and so on; public authorities will need access to
authoritative and up-to-date guidance in working with and interpretingthe Act.
Effective training for officials must be organised and provided. A
learning culture must be developed as the Act takes effect. For
example, case studies of general interest could be assembled,
publicised and made the subject of training courses.
The operation of any Act will need to be monitored, leading to an
annual report to Parliament.
There will need to be a central point within government to which the
proposed Information Commissioner can turn to ease communication and
liaison with the many public authorities covered by the Act. These
tasks are vital if we are to realise our objective of a more open
government. A clear, active and testing approach by the Information
Commissioner is unquestionably a key aspect of changing the culture.
Some of the functions listed above may well also properly fall to the
Commissioner, in furtherance of his or her role.
In general however, we believe that the role of champion should best be
supplied by government itself. It is vital that FOI should not result
in a position where all the pressure for an open and positive approach
to disclosure of information lies outside government, while a resulting
counter-culture of reluctance develops within.
The BMCC regards these commitments as essential to ensure that the
momentum towards open and accountable administration created by the FOI
Act is maintained.
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