Vanuatu
Name of law: Right to Information Act No. 13 of 2016
First adopted: 2017
Last modified: 2017-02
RTI Rating last updated: n/a
First adopted: 2017
Last modified: 2017-02
RTI Rating last updated: n/a
Introduction
Vanuatu’s legal framework governing the right to information is relatively strong and effective in design. Its external appeals structure is nearly compliant with all international standards, as the law provides the necessary safeguards to ensure independence. Though its powers could be more explicitly enumerated, the body appears effective with a binding mandate. Other areas of strength, including its comprehensive scope which apply to all three branches of government and a strong promotional measures regime. One notable feature that could be further improved upon, however, is tightening the exceptions regime to conform with international standards. Nevertheless, the law appears strong in design and we hope it can be implemented as such.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 3 | 6 |
| 2 | Scope | 26 | 30 |
| 3 | Requesting Procedures | 23 | 30 |
| 4 | Exceptions & Refusal | 23 | 30 |
| 5 | Appeals | 26 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 14 | 16 |
| ∑ = 121 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | N/A | No, the law makes reference to the Constitutional protection for freedom of expression instead. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 8. Right to access to information Subject to this Act, a person may access any information from a Government agency, relevant private entity or private entity. | - |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | 1. The purpose of this Act is: ... (d) to promote transparency, accountability, and national development by empowering and educating the public to understand and act upon their rights to information; and (e) to increase public participation in governance. | - |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | Partially | 1 | 3. applicant means a person who is: (a) applying for information under section 13; or (b) appealing to the Information Commissioner under section 64; | No indication of applicability to legal persons. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 3 | 2(1) This Act applies to: (a) information held by a Government agency or a relevant private entity on or after 30 July 1980. (2) The Minister may, by Order, declare that this Act applies to records or information created or held by a Government agency at a date earlier than the period referred to in paragraph (1)(a). (5) For the purposes of this Act, information held by: (a) an official of a Government agency or an official of a relevant private entity; or (b) an independent contractor engaged by a Government agency or relevant private entity in its capacity as a contractor, is deemed to be information of that Government agency or relevant private entity. 3. hold in relation to information that is liable to be produced under this Act, means in the possession, custody or control of a Government agency, relevant private entity or private entity, whether or not it was created by any of them or whether created prior to the commencement of this Act 3. record means information held in any form or medium by a Government agency, relevant private entity or private entity, whether or not it was created by any of them or came into existence before the commencement of this Act, and includes: (a) a record in writing; or (b) a document, manuscript and file; or (c) a film (including microfilm), negative, microfiche and facsimile copy of a document; or (d) a map, plan, graph or drawing; or a photograph; or a disc, tape, sound track or other device in which sounds or other data are embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced; or (e) an email, memo, opinion, advice, press releases, circular, order, logbook, contract, report, samples and models; | - |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 2(1) This Act applies to: (a) information held by a Government agency or a relevant private entity on or after 30 July 1980. (2) The Minister may, by Order, declare that this Act applies to records or information created or held by a Government agency at a date earlier than the period referred to in paragraph (1)(a). (5) For the purposes of this Act, information held by: (a) an official of a Government agency or an official of a relevant private entity; or (b) an independent contractor engaged by a Government agency or relevant private entity in its capacity as a contractor, is deemed to be information of that Government agency or relevant private entity. 3. hold in relation to information that is liable to be produced under this Act, means in the possession, custody or control of a Government agency, relevant private entity or private entity, whether or not it was created by any of them or whether created prior to the commencement of this Act 3. information has the same meaning as record 3. record means information held in any form or medium by a Government agency, relevant private entity or private entity, whether or not it was created by any of them or came into existence before the commencement of this Act, and includes: (a) a record in writing; or (b) a document, manuscript and file; or (c) a film (including microfilm), negative, microfiche and facsimile copy of a document; or (d) a map, plan, graph or drawing; or a photograph; or a disc, tape, sound track or other device in which sounds or other data are embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced; or (e) an email, memo, opinion, advice, press releases, circular, order, logbook, contract, report, samples and models; | Broad definition of information doesn't seems to restrict access to existing documents.But circular definition of information as a record. |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 7 | 3. Government agency includes: (a) the State; and (b) the Government; and (c) a Constitutional entity; and (d) any other Government agency that is prescribed by the Minister under subsection 2(4); | This provision is a little bit difficult to interpret, but in the absence of exclusions seems to apply to most of the Executive. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | 3. Government agency includes: (a) the State; and (b) the Government; and (c) a Constitutional entity; and (d) any other Government agency that is prescribed by the Minister under subsection 2(4); | - |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | 3. Government agency includes: (a) the State; and (b) the Government; and (c) a Constitutional entity; and (d) any other Government agency that is prescribed by the Minister under subsection 2(4); | - |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 3. relevant private entity means an entity: (a) that is owned, controlled or substantially financed directly or indirectly by funds provided by the Government, but only to the extent of that financing; 8. Right to access to information Subject to this Act, a person may access any information from a Government agency, relevant private entity or private entity. | Assumed also to cover public entities that are State corporations under definition of government agency. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | Partially | 1 | 3. Government agency includes: (a) the State; and (b) the Government; and (c) a Constitutional entity; and (d) any other Government agency that is prescribed by the Minister under subsection 2(4); | Not entirely clear that it covers all statutory bodies. |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | YES | 2 | 2(1) This Act applies to: (b) information held by a private entity that may assist in the exercise or protection of the rights of a person... (3) For the purposes of paragraph (1)(a), this Act applies to information: (a) held by a relevant private entity that relates to any funding provided to it by the Government; or (b) relating to the public service or functions carried out by the relevant private entity whether funded in whole or in part by the Government or by another organisation. 3. public services or functions means services or functions that are essential to the welfare of the people of Vanuatu and which are provided or supported by the Government and its agencies, or by a non-government agency on behalf of the Government; | - |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 13(3) A Government agency or a relevant private entity must not deny access to information based on: (a) any of the applicants reasons as to why the application is being made; or (b) any opinion of an official as to the applicant’s reason for applying. | The law prevents denials based on a person's reason for filing a request. It would be better to not require requesters to provide reasons, but full points given. |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | 13(2) An application made under subsection (1) may be made in writing, orally or through any electronic means, in any official language, and to the relevant Government agency, relevant private entity or private entity, specifying the information required. (3) A Government agency or a relevant private entity must not deny access to information based on: (a) any of the applicants reasons as to why the application is being made; or (b) any opinion of an official as to the applicant’s reason for applying. (4) An application under subsection (1) is to include the following information: (a) a postal address, fax number or email address to which the information may be sent; and (b) a telephone number at which the applicant may be reached; and (c) the form of access required in accordance with section 28; and (d) the language in which the information granted is to be supplied; and (e) an indication of whether the application is being made on behalf of a person and the submission of proof of the capacity in which the applicant is making the application, to the reasonable satisfaction of the Right to Information Officer; and (f) if the application is being made to a private entity - an explanation of why the information may assist in the exercise or protection of any right; and (g) an indication of whether the applicant believes that the information is necessary to safeguard the life or liberty of himself or herself or any other person, and the basis for that belief. | Requirement for a telephone number costs a point. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | 13(2) An application made under subsection (1) may be made in writing, orally or through any electronic means, in any official language, and to the relevant Government agency, relevant private entity or private entity, specifying the information required. (3) A Government agency or a relevant private entity must not deny access to information based on: (a) any of the applicants reasons as to why the application is being made; or (b) any opinion of an official as to the applicant’s reason for applying. (4) An application under subsection (1) is to include the following information: (a) a postal address, fax number or email address to which the information may be sent; and (b) a telephone number at which the applicant may be reached; and (c) the form of access required in accordance with section 28; and (d) the language in which the information granted is to be supplied; and (e) an indication of whether the application is being made on behalf of a person and the submission of proof of the capacity in which the applicant is making the application, to the reasonable satisfaction of the Right to Information Officer; and (f) if the application is being made to a private entity - an explanation of why the information may assist in the exercise or protection of any right; and (g) an indication of whether the applicant believes that the information is necessary to safeguard the life or liberty of himself or herself or any other person, and the basis for that belief. (5)If an applicant makes an application orally, the Right to Information Officer must reproduce that oral application into written form and provide a copy to the applicant. (6)If a Right to Information Officer is able to provide an immediate response to an oral application and the response is to the satisfaction of the applicant, the Right to Information Officer must subsequently reduce the application to writing for documentation purposes. | - |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 12. Functions of a Right to Information Officer (1) A Right to Information Officer has the following functions: (c) to assist persons seeking information under this Act; and 15. Duty to assist applicants. If an application for access to information is made, and that application does not comply with the requirements under subsection 13(4), the Right to Information Officer is to take reasonable steps to assist the person or applicant, free of charge, to make the application in a manner that complies with this Act. | - |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | 28(7) If an applicant is prevented by a disability from reading, viewing or listening to the information concerned in the form or manner in which it is held, the Right to Information Officer must, if the applicant so requests, take reasonable steps to make the information available in a form in which it is capable of being read, viewed or heard by the applicant. | - |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | YES | 2 | 14. A Right to Information Officer who receives an application under subsection 13(1) must, within 5 days of receiving the application, acknowledge the receipt and state the following in the acknowledgement: (a) the nature of the application; and (b) the date on which the application was received; and (c) the officer responsible for the application. | - |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | YES | 2 | 21. Transfer of application (1) If an application for information requires information that is held by another Government agency or relevant private entity, the Right to Information Officer must transfer the application, or part of it as may be appropriate, to the relevant Government agency or relevant private entity. (2) A Right to Information Officer who transfers an application under subsection (1) must: (a) make the transfer within 5 days after receiving the application; and (b) immediately notify the applicant of the transfer in writing, specifying: (i) the date on which the transfer is made; and (ii) the Government agency, relevant private entity or private entity to which the application is transferred to, its contact information and opening hours, and the name and contact details for the Right to Information Officer who will be processing the application. (3) A Right to Information Officer who receives a transferred application must acknowledge its receipt according to section 14. (4) If an application for information is transferred under subsection (1), the period for responding to that application as set out under subsection 16(1), commences from the date of the transfer. | - |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | 28. Form of access (1) Subject to subsection (4), if an applicant has requested that access to information be provided in a particular form, then access must be given in the form or manner requested. (2) Access to information may be given to an applicant in 1 or more of the following forms or manner: (a) a copy of the information; or (b) an opportunity to inspect the information using equipment normally available to the Government agency, relevant private entity or private entity; or (c) an opportunity to copy the information, using the applicant’s own equipment; or (d) in the case of information that is an article or thing from which sounds or visual images are capable of being reproduced, the making of arrangements for the applicant to hear or view those sounds or visual images; or (e) in the case of information which is held on a computer, or in electronic or machine-readable form, and from which the Government agency, relevant private entity or private entity concerned is capable of producing a printed copy of the information or part of it, by supplying such a copy; or (f) in the case of information available or capable of being made available in computer readable form, by supplying a copy in that form; or (g) a transcript of the content of the information, in print, sound or visual form, where such transcript is capable of being produced using equipment normally available to the Government agency, relevant private entity or private entity; or (h) a transcript of the information from shorthand or other codified form; or (i) an inspection of works; or (j) the taking of samples of materials. (3) If access is granted in a form or manner initially requested, an applicant may amend his or her preferred form or manner of access on receipt of notice of the reproduction fees payable. (4) If a Right to Information Officer is of the view that granting access to information in a form or manner indicated by the applicant would: (a) unreasonably interfere with the operation of the Government agency, relevant private entity or private entity; or (b) be detrimental to the preservation of the information; or (c) involve an infringement of the copyright of a person other than the Government agency, relevant private entity or private entity, he or she may offer to assist the applicant to identify another form or manner in which the access to the information may be granted. | - |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 16. Decision on an applications (1) Subject to this Act, a Right to Information Officer to whom an application is made under subsection 13(1) must, within 30 days of receiving the application: (a) determine whether or not to grant the application; and (b) notify the applicant of his or her decision in writing; and (c) if the application is granted, subject to the payment of any fee, give the applicant access to the information. | 30 calendar days or 20 working days. |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | 20. Extension of time (1) A Right to Information Officer may extend the period for responding to an application for only one occasion, for a period of not more than 14 days if: (a) the application is for a large amount of information or requires a search through a large amount of information and meeting the original time limit would unreasonably interfere with the activities of the Government agency, relevant private entity or private entity; or (b) consultations that are necessary to comply with the application cannot be reasonably completed within the 30 day period set out in subsection 16(1). (3) If the period to respond to an application is extended, the applicant is to be notified and the notice must: (a) state the period of the extension; and (b) provide the reasons for the extension; and (c) inform the applicant of his or her right of appeal to the Information Commissioner and set out the procedure for appealing and the applicable time limits in accordance with section 64. | - |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 30. Reproduction fees (1) An applicant must pay the prescribed reproduction fee if his or her request for access to information is granted. (2) An applicant is not required to pay any reproduction fee: (a) when lodging an application; | - |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | 30. Reproduction fees (1) An applicant must pay the prescribed reproduction fee if his or her request for access to information is granted. (2) An applicant is not required to pay any reproduction fee: (a) when lodging an application; or (b) in relation to time spent by the Right to Information Officer in searching for the information requested; or (c) in relation to time spent by the Right to Information Officer in examining the information to determine whether it contains exempt matter or deleting exempt matter from the information. (7) Reproduction fees charged by Government agency, relevant private entity or private entity must not exceed VT50,000. | Not clear centrally set and no free pages. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | 82. Information released in public domain (1) Subject to subsection (2), information to which an applicant is granted access under this Act must be regarded as information that is in the public domain. | - |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | Partially | 3 | 5 Act to prevail (1) If a provision of this Act conflicts with a provision of any other Act other than the Constitution, the provisions of this Act prevail. | General override but not specified that it applies to exceptions. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 6 | 4 Application of this Act (1) This Act does not apply to: (a) any information held by the system of custom, traditions and practices generally practiced throughout Vanuatu (c) any information which for the purposes of journalism, art or literature is held by a publically owned media body in relation to its program content. 22 Deferral of access (1) A Right to Information Officer may defer a grant of access to the information requested in the following circumstances: (d) if the premature release of the record would be contrary to the public interest - the Right to Information Officer must defer a grant of access to information until the occurrence of any event after which or the expiration of any period beyond which, the release of the document would not be contrary to the public interest. 85. Protection against liability for defamation, breach of confidence or copyright This Act is not to be construed as authorizing the disclosure of any information: (a) containing any defamatory matter; or (b) the disclosure of which would be in breach of confidence or of copyright. See also ss. 42-50. | Unclear what "the system of custom, traditions and practices" refers to. An exception for journalistic information may be legitimate, but it's difficult to justify extending the same protection to any artistic or literary information. Though s. 85 is designed as a protection from liability, it could also function as additional exceptions for defamation and copyright. |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | YES | 4 | See ss. 42-50 | - |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 3 | 38. Public interest to override exemptions (1) Despite any exemptions under this Part, a Right to Information Officer must grant an application for access to information if it is in the public interest to disclose such information. (2) A Right to Information Officer must consider whether subsection (1) applies in relation to any information requested before refusing access on the basis of an exemption under this Part. (3) Subject to subsections (4) and (5), a Right to Information Officer is to consider any of the following factors when determining whether access to information is in the public interest: (a) the objects of this Act; (b) the prevention of the commission of offences or other unlawful acts; (c) the prevention of a miscarriage of justice, abuse of authority or neglect in the performance of an official duty; (d) the promotion of effective use and oversight of public funds and expenditure; (e) whether the information is to be used for public debate or discussions; (f) the promotion of public participation in the political process and decision-making; (g) the avoidance of any danger to the health or safety of an individual or the public; (h) the avoidance of unauthorised use, or misuse of public funds; the protection of the environment; any other factors as the officer may consider relevant from time to time. (4) A Right to Information Officer must not take into account any of the following factors when deciding whether access to information is contrary to the public interest: (a) that access to the information could result in embarrassment to, or cause a loss of confidence in the Government of Vanuatu; (b) that access to the information could result in any person misinterpreting or misunderstanding the information; (c) that the author of the document was, or is of high seniority in the Government agency or relevant private entity to which the application for access to the information was made; (d) that access to the information could result in confusion or unnecessary debate. (5) A Right to Information Officer must consider any guidelines issued by the Information Commissioner under section 70 when determining whether access to information is contrary to the public interest. | A fairly strong override, but it only applies to exceptions listed in Part 5. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | YES | 2 | 51. Time limit for exemptions (1) Information that is exempted from disclosure under this Part ceases to be exempt if it is more than 10 years old commencing from the date on which it was made, or such other period as may be determined by the Information Commissioner after consultation with the Minister. (2) Subsection (1) does not apply to the personal information of a natural third party. (3) The Information Commissioner may, in consultation with the Minister, review any exempted information under this Part within 2 years of it being exempted. (4) Subject to subsection (3), the Information Commissioner may remove the exception status of information if it is no longer applicable. (5) A review made under subsection (3) must be made according to this Act. | - |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | Partially | 1 | 17. If information requested contains information relating to a third party, a Right to Information Officer may: (a) consider any representations made by a third party refusing to allow access under paragraph 32(a); and (b) refuse to grant access to that information until: (i) the time for the third party to appeal the release of the information has expired without any appeal being made; or (ii) an appeal made by the third party has been finally determined in favor of the release of the information. 31. Notice to third parties (1) When considering an application for access to information under section 13 that is: (a) personal information of a third party; or (b) commercial and confidential information of a third party, a Right to Information Officer must take reasonable steps to ensure that the third party to whom the information relates, is informed of the application within 14 days after the application is received or transferred. (2) When informing a third party under subsection (1), the Right to Information Officer must: (a) state that the application for access to information may be for personal or commercial and confidential information and state the nature and describe the content of the application; and (b) state the name of the applicant requesting the information; and (c) describe the provisions of subsection 42(1), or section 44 as the case may be; and (d) if the Right to Information Officer is of the opinion that the granting of access to such information is in the public interest under section 38, he or she must: (i) specify under which of the circumstances referred to in section 38 that access is being granted; and (ii) give reasons for his or her decision; and (e) state that the third party may, within 14 days after being informed: (i) make written or oral representations to the Right to Information Officer as to why the application for access should be refused; or (ii) give written consent for the disclosure of the information to the applicant.33 Decision on representations and notice 33(1) A Right to Information Officer must, within 21 days after a third party is informed: (a) decide, after giving due regard to any representations made by a third party under section 31 or 32, whether to grant or refuse to grant the application for access; and (b) notify the third party so informed, and a third party who was not informed of the application but who made representations or is located before the decision is taken, of the decision. (2) If after all reasonable steps have been taken as required under section 31, a third party is not informed of the application in question and the third party does not make any representations, a decision whether or not to grant the application for access must be made with due regard to the fact that the third party did not have the opportunity to make representations as to why the application should be refused. (3) If an application for access is granted, the notice under paragraph (1)(b) must state: (a) the reasons for granting the application, including the provisions of this Act relied upon; and (b) that the third party may lodge an appeal with the Information Commissioner against the decision within 14 days after notice is given and the procedure for making the appeal; and (c) that the applicant will be given access to the information after the expiry of the period of appeal, unless the appeal is made within that period. (4) If a Right to Information Officer decides to grant access, the applicant must be given access to the information after the expiry of the 14 day period set out in paragraph (3)(b). | Extended timelines. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 23. Partial grant of access (1) If an application for access to information contains an exempt matter, the Right to Information Officer must delete the exempt matter before granting access to the information. (2) If access to information is granted with the deletion of the exempted matter, the applicant must be notified of: (a) the deletion of the exempt matter; and (b) the information to which access has been granted; and (c) his or her right of appeal under section 64; and (d) the information to which access has been denied and the statutory provision by virtue of which the exempted matter is deleted. | - |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 18. Access to information denied If an application for access to information is denied, the notice to the applicant referred to in paragraph 16(1)(b) must: (a) state the reasons for the refusal; and (b) inform the applicant of his or her right of appeal to the Information Commissioner, the procedure for applying and the applicable time limits in accordance with section 64. | - |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 64. Appeal to Information Commissioner (1) A person who is not satisfied with a decision of a Right to Information Officer may within 20 days of being notified, appeal against that decision to the Information Commissioner. | - |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | 52. Appointment of Information Commissioner (1) The Judicial Service Commission is to appoint a person to be the Information Commissioner. (2) The Information Commissioner is to hold office for a period of 5 years and is eligible for reappointment for 1 term only. (3) A person is not to be appointed as an Information Commissioner unless his or her appointment has undergone a fair and transparent selection process and is based on merit. 54. Removal of Information Commissioner (1) The Judicial Service Commission may remove a person as the Information Commissioner if it is satisfied that the person: (a) is incapacitated by physical or mental illness; or (b) is declared bankrupt by a Court; or (c) has been convicted and sentenced by a Court for an offence not being a road traffic offence; or (d) has performed unsatisfactorily or ineffectively for a significant period of time; or (e) is the holder of a public office; or (f) exercises a position of responsibility in a political party; or (g) engages during his or her term in office in any paid employment outside the functions of his or her office; or (h) has acquired such financial or other interest as is likely to affect his or her functions as an Information Commissioner under this Act. | - |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | 58. Independence of Information Commissioner (1) The Information Commissioner is not subject to the direction or control of any person or body in the exercise of his or her functions or powers under this Act or any other Act. (2) The Information Commissioner is accountable to Parliament for the execution of his or her mandate, operations and performance. 60. Funds of the Office of the Information Commissioner The funds of the Office of the Information Commissioner consists of: (a) monies appropriated to it by Parliament; and (b) funds provided by non-Government Organisations; and (c) any other funds received from any other source. | - |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | YES | 2 | 52(4) A person must not be appointed as the Information Commissioner if: (a) he or she exercises a position of responsibility in a political party; or (b) he or she is a member of Parliament, Municipal Council or a Provincial Government Council; or (c) he or she has been convicted of a crime of violence or a crime of dishonesty or theft, for which he or she has not been pardoned; or (d) he or she is declared bankrupt by a Court. (5) The Information Commissioner must be a person who: (a) has a knowledge, understanding and appreciation of the Ni- Vanuatu culture, traditions and values; and (b) is of high integrity and competence; and (c) has an appropriate academic qualification and suitable experience in the public or private sector; and (d) is politically independent; and (e) is capable of discharging his or her functions without fear or favour; and (f) is of high standing in the community. | - |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | 65. Powers in relation to appeals (1) The Information Commissioner may investigate a matter on appeal and may carry out any or all of the following: (a) summon any person or witness and compel them to give oral or written evidence on oath and to produce any record or information; (b) summon expert witnesses if appropriate; (c) allow interested parties on application to join proceedings; (d) provide assistance to applicants if appropriate; (e) allow relevant persons to participate in hearings through any medium they may choose or any medium that is appropriate to facilitate the investigation; (f) require the discovery and inspection of documents; (g) receive evidence by sworn statements; (h) requisition any public record or copies thereof from any Court or office; (i) receive any such evidence as he or she deems necessary under oath or on affidavit; (j) enter private premises after notifying the owner of his or her intention to do so; (k) require the production of records and information relevant to the requirements of this Act and to make and take copies of such records and information; (l) interview any person for the purposes of inspection; (m) exercise any other powers conferred to him or her under this Act or any other Act. (2) The Information Commissioner may, during an investigation, examine any record or information to which this Act applies, and no such record or information may be withdrawn from him or her on any grounds. | No inspection powers for government agencies. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | Partially | 1 | 68. In deciding an appeal, the Information Commissioner may: (d) set aside the decision of a Right to Information Officer and make a new decision; or | Seems to be binding but not entirely clear. |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 68. In deciding an appeal, the Information Commissioner may: (a) reject the appeal and confirm the decision made by the Right to Information Officer of the Government agency or relevant private entity or private entity; or (b) vary the type of information originally granted or requested; or (c) vary the method in which the information is to be accessed or granted; or (d) set aside the decision of a Right to Information Officer and make a new decision; or (e) require the Government agency, relevant private entity or private entity to take such steps as may be necessary to bring it into compliance with its obligations under the Act, including: (i) appointing a Right to Information Officer; or (ii) publishing certain information or categories of information; or (iii) making certain changes to its practices in relation to the keeping, management and destruction of records, or the transfer of records to the National Archives; or (iv) complying with the Deposit of Books Act [CAP 88]; or (v) enhancing the provision of training on the right to information for its officers; or (vi) providing him or her with a report. | - |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 68(7) A person who is not satisfied with the decision of the Information Commissioner under this section may within 21 days of being notified of the decision, apply to the Supreme Court to review that decision. | - |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | N/A | No mention of fees, though it seems highly unlikely. Given that the process is complaint driven, it also likely does not require a lawyer. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 64(3) An appeal may relate to any of the following matters: (a) refusal of access to information; or (b) refusal to indicate whether or not the Government agency, relevant private entity or private entity holds information requested; or (c) refusal to communicate information regarding categories of information in its statement of organization; or (d) refusal to grant access to information within 48 hours for the protection of life or liberty; or (e) failure to respond to an application for information within the time limits specified under the Act; or (f) extending the time period for responding to an application; or (g) failing to provide a notice in writing of its response to an application for information; or (h) charging a fee, or an excessive fee; or (i) failing to transfer an application or transferring an application to an incorrect Government agency, relevant private entity or private entity; or (j) failing to communicate information regarding third party consent; or (k) providing insufficient, incomplete, inaccurate, misleading or false information; or (l) failing to communicate information in the form requested; or (m) failing to appoint an Right to Information Officer or the refusal of an Right to Information Officer to accept an applicant’s application for information or appeal under this Act; or (n) disputing the partial grant of access; or (o) in respect of any other matter under this Act. | - |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | 68. Decision on appeal and publication of decisions (1) The Information Commissioner must within 30 days after receiving an appeal, make a decision on the appeal after giving the parties an opportunity to present their arguments in writing. | - |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | 68(8) In any appeal to the Information Commissioner, the burden of proof is on the Right to Information Officer of the Government agency, relevant private entity, or private entity to show that he or she acted according to this Act. | - |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | 68(3) In deciding an appeal, the Information Commissioner may: (e) require the Government agency, relevant private entity or private entity to take such steps as may be necessary to bring it into compliance with its obligations under the Act, including: (i) appointing a Right to Information Officer; or (ii) publishing certain information or categories of information; or (iii) making certain changes to its practices in relation to the keeping, management and destruction of records, or the transfer of records to the National Archives; or (iv) complying with the Deposit of Books Act [CAP 88]; or (v) enhancing the provision of training on the right to information for its officers; or (vi) providing him or her with a report. | - |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | 86. Offences (1) A person who: (a) refuses to receive an application for information; or (b) in bad faith, denies an application for information; or (c) knowingly gives incomplete, misleading or wrong information; or (d) destroys information, without lawful authority; or (e) obstructs access in any way to any information; or (f) obstructs the performance of a Government agency, relevant private entity or private entity from carrying out a duty under this Act; or (g) interferes with or obstructs the work of the Information Commissioner, a Right to Information Officer or any other officer assisting the Information Commissioner or the Right to Information Officer; or (h) directs, proposes, counsels or causes any person in any manner to do any of the above, commits an offence punishable on conviction by a fine not exceeding VT500,000 or by a term of imprisonment not exceeding 1 year, or both. (2) If a Right to Information Officer, without reasonable cause: (a) refuses to receive an application; or (b) has not responded to an application within the time specified in this Act; or (c) has vexatiously denied an application; or (d) has given incorrect, incomplete or misleading information; or (e) refuses to render any assistance under this Act; or (f) obstructed in any manner the release of information, he or she commits an offence punishable on conviction by a fine of VT500,000. | - |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 2 | 63. Protection from liability (1) A civil or criminal liability action is not to be taken against the Information Commissioner or any staff of the Office of the Information Commissioner in respect of anything done or omitted to be done in good faith in the execution or purported execution of his or her functions and powers under this Act. (2) In addition to subsection (1), any information supplied pursuant to an investigation under this Act is privileged unless that information is shown to have been supplied with malice. 84. Good faith disclosures A Right to Information Officer or any person assisting the Right to Information Officer is not liable to any civil or criminal action, or any administrative or employment related sanction or detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty under this Act. | - |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | 83. Whistleblowers (1) A person is not liable to any civil or criminal action or any administrative or employment related sanction or detriment for: (a) releasing information on any wrongdoing; or (b) releasing information which would disclose a serious threat to health, safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment. (2) For the purposes of subsection (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious mal- administration regarding a Government agency, relevant private entity or private entity. | - |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | 10. Appointment of Right to Information Officer for each Government agency The Public Service Commission must, within 6 months of being specified by an Order of the Minister under paragraphs 2(4)(a) and (b), appoint a person in writing to be a Right to Information Officer for each Government agency. 11. Right to Information Officer for relevant private entities and private entities (1) A relevant private entity or a private entity must appoint a person or persons to be its Right to Information Officer. (2) If a relevant private entity or a private entity fails to appoint a Right to Information Officer, the Principal Administrative Officer of that entity is to be the Right to Information Officer for the purposes of this Act. | - |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 56. Functions and powers of the Information Commissioner (g) to conduct educational programs to advance the understanding of the public, in particular of disadvantaged communities; or (h) to publicise the requirements of this Act and the rights of individual persons under it. 69. Establishment of a Right to Information Unit (1) The Right to Information Unit is established. (2) The Unit has the following functions: (e) to engage with civil society to promote the use and understanding of the Act by the public; | - |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | 56. Functions and powers of the Information Commissioner (g) to conduct educational programs to advance the understanding of the public, in particular of disadvantaged communities; or (h) to publicise the requirements of this Act and the rights of individual persons under it. 69. Establishment of a Right to Information Unit (1) The Right to Information Unit is established. (2) The Unit has the following functions: (f) to develop educational materials for officers and the general public; (g) to develop and execute public education activities suited to Vanuatu socio-economic context; 70. Information Commissioner to issue guidelines (1) The Information Commissioner must, as soon as practicable, and no later than 12 months after the commencement of this Act: (a) compile in each official language, a guideline containing practical information to facilitate the effective exercise of rights under this Act; and | - |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | 12(1) A Right to Information Officer has the following functions: (ii) records management, archiving and disposal of records; 69. Establishment of a Right to Information Unit (1) The Right to Information Unit is established. (2) The Unit has the following functions: (h) to develop a National Code of Practice on information and records management; 72. Code of practice on information and records management (1) A Government agency, relevant private entity or private entity must maintain its records in a manner which facilitates the right to information under this Act, and in accordance with the Code of Practice. (2) The Unit must, after consulting all relevant and interested parties, and on the recommendation of the Archivist appointed under section 5 of the Archives Act [CAP 216], issue within 12 months of the commencement of this Act, a Code of Practice relating to: (a) the creation, keeping, management and disposal of records; and (b) the transfer of records to the National Archives. | - |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | 56. (1) In addition to any other functions and powers provided for in this Act, the Information Commissioner has the following functions and powers: (f) to collaborate with or undertake training activities for officials on the right to information and the effective implementation of this Act; 69. Establishment of a Right to Information Unit (1) The Right to Information Unit is established. (2) The Unit has the following functions: (d) to train Right to Information Officers and officers; 73. Training of officials A Government agency, relevant private entity or private entity must ensure the allocation of resources and make arrangements with the Unit for the training of its officials on the right to information and the effective implementation of this Act. | - |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | 62. Monitoring and reporting relationships (1) A Right to Information Officer of a Government agency or a relevant private entity must submit a monthly report to the Right to Information Unit established under section 69 on the activities of his or her respective organization. | - |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | 61. Annual report (1) The Information Commissioner must, within 6 months after each financial year, provide an annual report to the Parliament on the following: (a) the general operation of this Act, and compliance by Government agencies, relevant private entities and private entities to this Act; and (b) the activities and audited accounts of the Office for the previous financial year. | - |
