African Union

Name of law: African Union Draft Model Law
First adopted: 2010

Introduction

It is important to note that many of our critiques of this law are that it is, in areas, too strong, such as allowing for overly onerous requirements or giving unrealistically broad powers to the oversight mechanism (you can read the full analysis at http://www.law-democracy.org/wp-content/uploads/2010/07/11.08.Africa.Model-FOI-Comments.pdf). The RTI Rating Tool was not designed to measure these kinds of deficiencies, resulting in a score that does not always accurately reflect where the model law´s deficiencies lie.

id	Section	Points	Max score
1	Right of Access	6	6
2	Scope	30	30
3	Requesting Procedures	26	30
4	Exceptions & Refusal	28	30
5	Appeals	29	30
6	Sanctions & Protections	6	8
7	Promotional Measures	13	16
		∑ = 138	∑ = 150

Section	I	Description	Scoring instructions	Max score	Findings	Points	Article
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	YES	2	The preamble recognizes it as a fundamental human rights.
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	Art. 2 and 3.
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	YES	2	Art. 2, 3 and 5
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	YES	2	Art 1 definition of person and Art 10
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	YES	4	Art 1 definition of information
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	Art 1 definition of information
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	YES	8	Definition of public body includes everything.
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	Definition of public body
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	Definition of public body
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	Definition of public body and relevant private body
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	YES	2	Covers any body created by statute or the constitution
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	Definition of relevant private body
3. Requesting Procedures	13	Requesters are not required to provide reasons for their requests.	Y/N answer 0 or 2 points	2	YES	2	Art. 11(3)
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	YES	2	Art. 11(4)
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	Partially	1	Art. 11(1) - orally or in writing, but no mention of electronic or faxed requests.
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	art. 12
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	art. 12 and 19(6).
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	Partially	1	Art 11(5) - but no clear timeframe.
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	Partially	1	Art. 15
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	Art. 19.
3. Requesting Procedures	21	Public authorities are required to respond to requests as soon as possible.	Score: No=0, Yes=2 points	2	YES	2	Art. 13
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	Art. 13 - 30 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	Art. 14
3. Requesting Procedures	24	It is free to file requests.	Score: No=0, Yes=2 points	2	YES	2	Art. 21
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	YES	2	Art. 21 - limits it to reproduction costs and says that fees won\\\\\\\'t be levied where requester is indigent. Fees are also optional.
3. Requesting Procedures	26	There are fee waivers for impecunious requesters.	-	2	YES	2	Art. 21
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	Art. 102
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	YES	4	Art. 4 (1)
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	9	art. 47(1) - overly broad.
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
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	YES	4
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	Partially	1	Art. 49 - but the sunset clause doesn\\\\\\\'t apply if the exception is still relevant.
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	YES	2	Art. 38(2)
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	Art. 48
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	Art. 13(7)
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	YES	2	Art. 53 and 54.
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	Art. 81
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	Art. 60 and 61(4).
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	Art. 62(5) protects their finances, also art. 63.
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	Art. 60(3) and (4).
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	YES	2	Art. 74
5. Appeals	42	The decisions of the independent oversight body are binding.	Score N=0, Y=2 points	2	YES	2	Art. 79
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	Art. 79
5. Appeals	44	Requesters have the right to lodge a judicial appeal.	1 for partially, 2 for fully.	2	YES	2	Art. 99
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	Partially	1	Not mentioned - the fact that representation can be made orally implies that no lawyer is required though.
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	Art. 81(1)
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	Timelines under art. 84 and clear procedures in the surrounding sections.
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	Art. 85
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	Art. 96.
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	Art. 73 and 79. Also see art. 104.
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	YES	2	Art. 79(c) and 96.
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	Art; 68 for oversight body, 2(g) for others. Also see art. 103.
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	NO	0	Not mentioned in the law - though many countries do this through separate legislations.
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	Art. 8(1)
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	Art. 77
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	Art. 72(1)
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	Art. 72(2)(c)
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	Some areas of the law hinted at this, but I couldn\\\'t find it explicitly stated.
7. Promotional Measures	59	Training programs for officials are required to be put in place.	Score Y/N, Y=2 points	2	YES	2	Art. 71(2)(e)
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	Art. 75
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	Partially	1	Art. 76 - but not a consolidated report on overall progress.

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Introduction

Colaborators

1. Right of Access

1. Right of Access

1. Right of Access

2. Scope

2. Scope

2. Scope

2. Scope

2. Scope

2. Scope

2. Scope

2. Scope

2. Scope

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

3. Requesting Procedures

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

4. Exceptions & Refusal

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

5. Appeals

6. Sanctions & Protections

6. Sanctions & Protections

6. Sanctions & Protections

6. Sanctions & Protections

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures

7. Promotional Measures