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I. Introduction
II. FOI, A More Detailed Overview
III. The Right to Know and the Public Interest, Some Guidelines
IV. Proposals for an Independent Review Mechanism, Information Commissioner and Two Stage Appeal Process
V. Public Records & ArchivesVI. The Challenge of Open Governance
I. Introduction
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 grounded approach.
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:
1. Defence, Security and International relations: Australia, New Zealand, Ireland, the Netherlands, USA, France, Canada, UK.
2. In ternal Discussion and Advice: Australia, New Zealand, Ireland, the Netherlands, USA, France, Canada, UK.
3. Law Enforcement and Legal Proceedings: Australia, New Zealand, Ireland, the Netherlands, USA, France, Canada, UK.
4. Effective Management of the Economy and Tax Collection: Australia, New Zealand, Ireland, USA, France, Canada, UK.
5. Effective Management of the Public Service, Public Employment, Appointments and Honours: Australia, Ireland, The Netherlands, USA,Canada, UK.
6. Unreasonable, Vexatious or Voluminous Requests: Australia, Ireland,UK.
7. Certain Research, Statistics, and Analysis: Australia, Ireland, USA, Canada, UK.
8. Individual Privacy: Australia, New Zealand, Ireland, USA, the Netherlands, France, Canada, UK.
9. Third Party Commercial Confidence: Australia, New Zealand, Ireland, USA, the Netherlands, France, Canada, UK.
10. 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 statutory rights.
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 civil proceedings.
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:
1. 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.
2. 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.
3. 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.
4. 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 Disclosure Decisions
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:
1. National security, defence and international relations:
Protection 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.
2. Law Enforcement:
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.
3. Personal Privacy:
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.
4. Commercial Confidentiality:
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.
5. 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.
6. 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.
7. The Integrity of the Decision-making and Policy Advice Processes in Government:
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 Government.
Stage 1 : Internal Review
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:
1. The general public will need a user-friendly "How to use FOI" guide (preferably printed in Setswana, as well as English).
2. 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.
3. 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.
4. The operation of any Act will need to be monitored, leading to an annual report to Parliament.
5. 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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