Antigua and Barbuda
Name of law: The Freedom of Information Act
First adopted: 2004
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 2004
Last modified: n/a
RTI Rating last updated: n/a
Introduction
Despite some shortcomings, Antigua and Barbuda has a relatively robust law. The law is broad in scope and has an exceptions regime that, for the most part, reflects international standards. Additionally, the law provides for strong promotional measures and establishes an independent oversight body that is empowered to issue binding decisions. Some weaknesses include vague requesting procedures and rules on access fees, and the fact that not all of the exceptions are harm tested.| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 3 | 6 |
| 2 | Scope | 24 | 30 |
| 3 | Requesting Procedures | 20 | 30 |
| 4 | Exceptions & Refusal | 23 | 30 |
| 5 | Appeals | 24 | 30 |
| 6 | Sanctions & Protections | 5 | 8 |
| 7 | Promotional Measures | 14 | 16 |
| ∑ = 113 | ∑ = 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 | Not in constitution. |
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 | Partially | 1 | An Act to promote maximun disclosure of information in the public interest, to guarantee and facilitate the right of access to information and to provide for effective mechanisms to secure that right. | The use of the words "maximum disclosure" warrants a point. |
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 | The Bill is intended to facilitate the right of the public to have access to information held by public authorities in order to further the public interest by promoting informed discussion of public affairs and greater accountability of public authorities. | 1 - in the explanatory memorandum 1 - in the explanatory memorandum |
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 | 15(1) Notwithstanding any law to the contrary and subject to the provisions of this Act, every person has the right to obtain, on request, access to information. | 1 - all persons, no mention of 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 | YES | 4 | Art 4(1) For purposes of this Act, a record includes any recorded information, regardless of its form, source, date of creation, or official status, whether or not it was created by the public authority or private body that holds it and whether or not it is classified. | Art 4(1) is sufficiently broad. |
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 4(1) For purposes of this Act, a record includes any recorded information, regardless of its form, source, date of creation, or official status, whether or not it was created by the public authority or private body that holds it and whether or not it is classified. Art 16(2) A person making a request for information to a public authority shall be entitled, subject only to the provisions of this Part and Part IV of this Act. | Art 4(1) - applies to information in any form - implies the right to ask questions. This is reinforced by the wording of 16(2)(a). |
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 | Art 3(1) For the purpose of this Act, a public authority means: (a) the Government; (b) a Ministry of the Government and a department. division or unit, by whatever name known, of a Ministry; (c) the Barbuda Council established under section 123 the Constitution and the Barbuda Local Government Act; (d) a body: (i) established by or under the Constitution or any other law (ii) owned, controlled or substantially financed by the Government from public funds (iii) carrying out a function conferred by law or by executive action, or a public function conferred by the Government, only to the extent of that function (e) such other body carrying out a public function as the Minister may, by Order published in the Gazette, designated. (1) For purposes of this Act, a private body includes any body, excluding a public authority that:- (a) carries on any trade, business or profession, but only in that capacity; or (b) has legal personality | Art 3 - includes the ministries and their departments, the local authorities, and "the government". Definition of "government" is not given. Under the circumstances I would presume that this includes the executive as a whole, since there are no listed exceptions. Local government and ministries are also enumerated, as well as any body created by law or statute. No exclusions. |
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 | Art 52 of the Constitution. 1. The power of Parliament to make laws shall be exercised by bills passed by the Senate and the House (or in the cases mentioned in sections 54 and 55 of this Constitution by the House) and assented to by the Governor-General on behalf of Her Majesty. 2. When a bill is presented to the Governor-General for assent in accordance with this Constitution, he shall signify that he assents thereto. 3. When the Governor-General assents to a bill that has been submitted to him in accordance with the provisions of this Constitution the bill shall become law and the Clerk of the House shall thereupon cause it to be published in the Official Gazette as law. 4. No law made by Parliament shall come into operation until it has been published in the Official Gazette but Parliament may postpone the coming into operation of any such law. | Not specifically enumerated - but the legislature and senate should be covered since they're established by the constitution. |
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 | NO | 0 | (7) This Act does not apply to: (c) a court, or the holder of a judicial office or other office pertaining to a court in its capacity or his capacity as such; or (d) a registry or other office of a court and the staff of such a registry or other office in their capacity as members of that staff in relation to matters pertaining to the administration of the court. | |
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(1) For the purpose of this Act, a public authority means: (d) a body (ii) owned, controlled or substantially financed by the Government from public funds. | |
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(1) For the purpose of this Act, a public authority means: (d) a body (i) established by or under the Constitution or any other law 7 This Act does not apply to (a) a commission of inquiry or the proceedings and findings of such a Commissions of Inquiries Act; | Art 3(1)(d)(I), but does not apply to commissions of inquiry (Art 7(a)) |
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 | 3(1) For the purpose of this Act, a public authority means: (d) a body (ii) owned, controlled or substantially financed by the Government from public funds (iii) carrying out a function conferred by law or by executive action, or a public function conferred by the Government, only to the extent of that function. | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | NO | 2 | 17(4) The reason for a request for information made to a public authority irrelevant for the purpose of deciding whether the information should be provided. | |
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 | 17(1) For the purposes of section 15, a request for information shall be made by the applicant in writing addressed to an official of a public authority or private body and in sufficient detail to facilitate the identification, with reasonable effort, whether or not the body holds a record containing that information. | Request made in writing, and requires only the information necessary to identify the document. |
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 | NO | 0 | N/A | Procedure is vague. |
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 | 17(2) Where a request for information does not comply with the provisions of subsection (1), the official who receives the request shall, subject to subsection (6), render such reasonable assistance, free of charge, as may be necessary to enable the request to comply with subsection (1). | |
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 | 17(3) A person who is unable, because of illiteracy or disability, to make a written request for information may make an oral request, and the official who receives the oral request shall, subject to subsection (6), reduce it to writing, and include his name and position within the public authority or private body, and give a copy thereof to the person who made the request. | |
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 | 17(8) An official of a public authority or private body which receives a request for information shall provide the person making the request with a receipt documenting the request. | |
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 | 22(1) Where an official who receives a request for information not held believes, on reasonable grounds, that the request relates to information that is not contained in any record held by the public body, the official may transfer the request to the information officer for purposes of compliance with this section. (2) Where an information officer receives a request pursuant to subsection (1), he shall confirm whether or not the public body holds a record containing the information and, if it does not, shall, he knows of another public body which holds the relevant record, as soon as practicable: (a) transfer the request to that public body and inform the applicant of such transfer; or (b) indicate to the applicant which public body holds the relevant record; whichever would be likely to ensure more expeditious access to the information. (3) Where a request is transferred pursuant to subsection (2)(a) the time limit for responding to requests under section 18 shall begin to run from the date of the transfer. (2) A private body which receives a request for information that is not contained in any record held by the private body shall notify the person making the request that it does not hold the information. | Allows for transfers - but these are not obligatory and the original timeline does not apply. |
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 | 21(1) Where a request indicates a preference as to the form of communicating communication of information provided in subsection (2), a public or private body communicating information pursuant to a request for information shall, subject, to subsection (3), do so in accordance with the preference indicating by the applicant. (2) An applicant may, in a request for information, indicate the following preferences as to the form of communication of information (a) a true copy of the record in permanent or other form; (b) an opportunity to inspect the record, where necessary using equipment normally available to the public authority or private body; (c) an opportunity to copy the record, using equipment other than the equipment of the public authority or private body. (d) a transcript of the record in print, sound or visual form; (e) a transcript of the content of a record, in print, sound or visual form, where such transcript is capable of being produced using equipment normally available to the body; or (f) a transcript of the record from shorthand or other codified form. (3) A public or private body shall not be required to communicate information in the form indicated by the person making the request where to do so would (a) unreasonably interfere with the operations of the public authority or private body; or (b) adversely affect the preservation of the record. (4) Where a record exists in more than one language, communication of the record shall, from among those languages, be given in accordance with the language preference of the person making the request. | |
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 | 18(1) Subject to subsections (2) and (3), an official of a public responding to authority or private body must respond to a request for requests information as soon as practicable and in any event within twenty working days of receipt of the request if the request has been approved and the applicant has paid the fees required to be paid under section 20. | |
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 | 18(1) Subject to subsections (2) and (3), an official of a public responding to authority or private body must respond to a request for requests information as soon as practicable and in any event within twenty working days of receipt of the request if the request has been approved and the applicant has paid the fees required to be paid under section 20. | 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 | 18(3) The official of a public authority or private body may, by notice in writing within the initial period of twenty days extend the period in subsection (1) to the extent strictly necessary, and in any case to not more than forty working days, where the request is for a large number of records or requires a search through a large number of records and where compliance within twenty working days would unreasonably interfere with the operations of the public authority or private body. | limits extensions reasonably, with requirement for notification. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 20(1) The communication of information pursuant to a request by a public or private body may, subject to subsections (2) and (3), be made conditional upon payment by the person making the request of a reasonable fee, which shall not exceed the actual cost of searching for, preparing and communicating the information. (2) Payment of a fee shall not be required for requests for personal information, and requests in the public interest. (3) The Minister may, after consultation with the Commissioner, make Regulations providing: (a) for the fees to be paid; (b) for the manner in which fees are to be calculated; (c) that no fee is to be charged in cases specified in the Regulations; and (d) for any other matter relating to fees. (4) A public body shall not require payment of a fee pursuant to subsection (1) where the cost of collecting that fee would exceed the amount of the fee. | Art 20 allows the gov't to charge for the cost of searching - but it's unclear as to whether or not requests are free to file. |
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 | NO | 0 | 14 The information officer of a public authority shall, in each Commissioner financial year, submit to the Commissioner a report on the activities of the public body pursuant to, or to promote compliance with, this Act, which shall include information about: (c) fees charged for requests for information; 16(1) A person is not entitled to obtain, in accordance with the procedure provided for in this Part, access to: (a) a document which contains information that is open to public access, as part of a public register or other document, in accordance with another written law, where that access is subject to a fee or other charge; 20(1) The communication of information pursuant to a request by a public or private body may, subject to subsections (2) and (3), be made conditional upon payment by the person making the request of a reasonable fee, which shall not exceed the actual cost of searching for, preparing and communicating the information. | Art 14(c) - fees are not centrally set. Art 16(1)(a) allows officials to charge separate access fees for some information. 20(1) limits fees to the cost of searching for, preparing and communicating the information. All of these violation international best practicses. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | 20(3) The minister may, after consultation with the Commissioner, make Regulations providing (c) that no fee is to be charged in cases specified in the Regulations; and | 20(3)(c) suggests this may be addressed in the regulations, but it's not stated here. |
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 | NO | 0 | N/A | Not mentioned. |
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 | 6(1) This Act applies to the exclusion of the provisions of any other law that prohibits or restricts the disclosure of a record by a public or private body to the extent that such provision is inconsistent with this Act. | |
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 | 7 This Act does not apply to (b) such public authority or function of a public authority as the Minister may, by Order subject to negative resolution of the House of Representatives, determine; | Art 7(b) allows the legislature to exempt any public authority via a resolution. |
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 | Partially | 2 | 26(1) A public authority or private body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would involve the unreasonable disclosure of personal information about a third party who is a natural person. (2) Subsection (1) does not apply if (a) the third party has effectively consented to the disclosure of the information; (b) the person making he request is the guardian of the third party, or the next of kin or the executor of the will of a deceased third party; (c) the third party has been deceased for more than 20 years; or (d) the third party is or was an official of a public body and the information relates to his function in that capacity. (2) A public authority or private body may refuse to indicate whether or not it holds a record, or refuse to communicate information, which is: (a) the official record of any deliberation or decision of Cabinet; (b) a document that has been prepared by a Minister of Government or on his behalf or by a public authority for the purpose of submission for consideration by Cabinet or a document which has been considered by the Cabinet and which is related to issues that are or have been before Cabinet; (c) a document prepared for the purpose of briefing a Minister of Government in relation to issues to be considered by Cabinet; (d) a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (c); or (e) a document the disclosure of which would involve the disclosure of any deliberation or decision of Cabinet, other than a document by which a decision of Cabinet was officially published. 28 A public authority or private body may refuse to communicate information if (b) the information was obtained in confidence from a third party and - (i) it contains a trade secret | Art 26 - personal information isn't specifically harm tested - but the fact that they mention that the disclosure must be "unreasonable" makes it ok. 33(2) - cabinet deliberations. 28(b)(I) - trade secrets. |
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 | 24 Notwithstanding any provision in this Part, a public authority may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm that would result from the refusal outweighs the public interest in the disclosure of that information. | Art 24 - a strong public interest override, but this does not apply to exemptions in Art 7 or 23. |
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 | 34(1) The provisions of sections 27 to 32 apply only to the extent that the harm they seek to protect against would, or would be likely to, occur at or after the time at which the request is considered. (2) Sections 28 (c), 30, 31, and 32 do not apply to a record which is more than thirty years old. | Art 34 - exceptions cease to apply when the harm ceases, but the sunset period of 30 years is too long. |
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 | NO | 0 | N/A | No such procedures. |
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 | 25 If a request for information relates to a record containing information which, subject to this Part, falls within the scope of an exception specified in this Part, any information in the record which is not subject to an exception shall, to the extent it may reasonably be severed from the rest of the information, be communicated to the person making the request. | |
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 | 19(1) The response pursuant to section 18 to a request for information shall be made in writing and state (b) adequate reasons for the refusal in relation to any part of the request which is not granted subject only to Part IV; (d) the right of appeal to the Commissioner or to a judicial review available to the applicant. | |
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 | No internal appeals. |
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 | 41 A person who has made a request for information may apply in writing to the Commissioner for a decision that a public authority or private body has failed to comply with an obligation under Part III, including the following: (a) refusing to indicate whether or not it holds a record, or to communicate information, contrary to section 13; (b) failing to respond to a request for information within the time limits established in section 18; (c) failing to provide a notice in writing of its response to a request for information, in accordance with section 19; (d) failing to communicate information forthwith, contrary to section 19 (3); (e) charging an excessive fee, contrary to section 20; or (f) failing to communicate information in the form requested, contrary to section 21." | |
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 | 35(1) The Governor-General, acting on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution, shall appoint an Information Commissioner for the purposes of this Act, on such terms and conditions as may be specified in the instrument of his appointment. (2) A person shall not be qualified to hold office as Commissioner if that person (a) is a member of the House of Representatives or a Senator; (b) holds or is acting in a public office; (c) is an undischarged bankrupt, having been declared bankrupt under any law; (d) has, within the period of ten years immediately preceding his appointment, been convicted of theft, fraud or other such offence involving dishonesty; or (e) holds office in, or is an employee of, a political party. (3) The Commissioner shall hold office for a term of [five] years and may be re-appointed for a further term of five years, but shall not hold office for more than two consecutive terms. (4) The Commissioner may be removed from office by the Governor-General, for misconduct, on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution. | Art 35 - Appointed by GG with approval of both houses on recommendation of PM. Requires agreement of GG, PM and both houses for a dismissal. |
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 | Partially | 1 | 38(1) In the exercise of his functions under this Act, the Commissioner shall not be subject to the direction or control of any other person or authority. (2) All officers and employees of the Office of the Commissioner and any other persons authorised to perform any functions under this Act shall be under the control and direction of the Commissioner and shall perform their functions without fear, favour or prejudice; and no person or authority shall interfere with or exert undue influence on them in the exercise of their powers or in the performance of their professional functions. | Art 38 - commissioner is independent and reports to no one. No mention of budgetary independence. |
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 | Partially | 1 | 35(1) The Governor-General, acting on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution, shall appoint an Information Commissioner for the purposes of this Act, on such terms and conditions as may be specified in the instrument of his appointment. (2) A person shall not be qualified to hold office as Commissioner if that person (a) is a member of the House of Representatives or a Senator; (b) holds or is acting in a public office; (c) is an undischarged bankrupt, having been declared bankrupt under any law; (d) has, within the period of ten years immediately preceding his appointment, been convicted of theft, fraud or other such offence involving dishonesty; or (e) holds office in, or is an employee of, a political party. (3) The Commissioner shall hold office for a term of [five] years and may be re-appointed for a further term of five years, but shall not hold office for more than two consecutive terms. (4) The Commissioner may be removed from office by the Governor-General, for misconduct, on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution. | Art 35 - Cannot be a politician or employee or office holder of a political party. |
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 | 44(1) In coming to a decision pursuant to section 42 or 43, the Commissioner shall have the power to conduct an investigation, including the issuing of orders requiring the production of evidence and compelling witnesses to testify. (2) The Commissioner may, during an investigation pursuant to subsection (1), examine any record to which this Act applies, and no such record may be withheld from the Commissioner on any grounds. | Art 44 - can review documents and compel witnesses, but no mention of inspecting premises. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 43(1) Where Commissioner decides that a public authority has failed to comply with an obligation pursuant to Part II, the Commissioner may require the public authority to take such steps as may be necessary to bring it into compliance with its obligations under Part II, including the following: (a) appointing an information officer; (b) publishing the relevant information and categories of information; (c) making relevant changes to its practices in relation to the keeping, management and destruction of records, and the transfer of records to the Archives and Records Office; (d) enhancing the provision of training on the right to information for its officials; (e) providing the Commissioner with an annual report, in compliance with section 14; (f) in cases of unreasonable or willful failure to comply with an obligation under Part III, paying a fine. (2) The Commissioner shall serve notice of the decision, to the public authority together with information regarding the right of the public authority to a review of the Commissioner's decision. Art 46 - On the expiry of the period of 28 days referred to in section 43 or such longer period as the Commissioner may, pursuant to a decision or order under section 42 or 43 determine, the decision of the Commissioners shall become binding and the failure of a public authority to carry out the decision or order shall be treated by the Court as a contempt of court. | |
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 | 43(1) Where Commissioner decides that a public authority has failed to comply with an obligation pursuant to Part II, the Commissioner may require the public authority to take such steps as may be necessary to bring it into compliance with its obligations under Part II, including the following: (b) publishing the relevant information and categories of information; | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | 45(1) The complainant, or the relevant public authority or private body, may, within 28 days, apply to the High Court for a review of a decision of the Commissioner pursuant to section 42 or 43, or an order pursuant to section 44 (1). (2) In any review of a decision pursuant to section 39, the burden of proof shall be on the public body or private body to show that it acted in accordance with its obligations under Part II. | |
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 | N/A | No mention of whether the application is free. The fact that it is merely in the form of a written complaint suggests that no lawyer is needed. |
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 | 41 A person who has made a request for information may apply in writing to the Commissioner for a decision that a public authority or private body has failed to comply with an obligation under Part III, including the following: (a) refusing to indicate whether or not it holds a record, or to communicate information, contrary to section 13; (b) failing to respond to a request for information within the time limits established in section 18; (c) failing to provide a notice in writing of its response to a request for information, in accordance with section 19; (d) failing to communicate information forthwith, contrary to section 19 (3); (e) charging an excessive fee, contrary to section 20; or (f) failing to communicate information in the form requested, contrary to section 21. | Art 41 provides broad grounds of appeal. |
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 | 42(1) The Commissioner shall, subject to subsection (2), decide an application made pursuant to section 41 as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public authority or private body an opportunity to provide their views in writing. (2) The Commissioner may summarily reject applications: (a) which are frivolous, vexatious or unreasonable; or (b) if the applicant has failed to seek or use any other remedies established by the relevant public or private body which are available to him. (3) In an application pursuant to section 41, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under Part II. (4) In a decision pursuant to subsection (1), the Commissioner may - (a) dismiss the application; (b) require the public body or private body to take such steps as may be necessary to bring it into compliance with its obligations pursuant to Part II; (c) require the public body to compensate the complainant for any loss or other detriment suffered; or (d) in the case of willful failure to comply with an obligation pursuant to Part II, impose a fine on the public body. (3) The Commissioner shall provide a copy of the decision to the complainant and the public authority or private body together with information regarding the right of the parties to a review of the Commissioner's decision. | Art 42 - clear procedure and timeline |
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 | 42(3) In an application pursuant to section 41, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under Part II. | |
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 | 42(4) In a decision pursuant to subsection (1), the Commissioner may: (a) dismiss the application; (b) require the public body or private body to take such steps as may be necessary to bring it into compliance with its obligations pursuant to Part II; (c) require the public body to compensate the complainant for any loss or other detriment suffered; or (d) in the case of willful failure to comply with an obligation pursuant to Part II, impose a fine on the public body. Art 43(1) - (1) Where Commissioner decides that a public authority has failed to comply with an obligation pursuant to Part II, the Commissioner may require the public authority to take such steps as may be necessary to bring it into compliance with its obligations under Part II, including the following:(a) appointing an information officer; (b) publishing the relevant information and categories of information; (c) making relevant changes to its practices in relation to the keeping, management and destruction of records, and the transfer of records to the Archives and Records Office; (d) enhancing the provision of training on the right to information for its officials; (e) providing the Commissioner with an annual report, in compliance with section 14; (f) in cases of unreasonable or willful failure to comply with an obligation under Part III, paying a fine. (2) The Commissioner shall serve notice of the decision, to the public authority together with information regarding the right of the public authority to a review of the Commissioner's decision. | |
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 | 48(1) A person shall not willfully: (a) obstruct access to any record contrary to Part III of this Act; (b) obstruct the performance by a public authority of a duty pursuant to Part III of this Act; (c) interfere with the work of the Commissioner; or (d) destroy records without lawful authority. (2) A person who contravenes any of the provisions of subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding two years or to both. | |
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 | |
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 | Partially | 1 | 40(1) The Commissioner, any officer or employee of his Office or any other person acting on behalf of or under the direction of the Commissioner shall not be personally liable in criminal or civil proceedings for any act done in good faith pursuant to this Act. (2) For the purposes of proceedings for defamation, any information provided, whether orally or in writing, pursuant to an investigation by or on behalf of the Commissioner under this Act shall be treated as privileged information unless it is shown that that information was not provided in good faith. | |
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 | 47(1) A person may disclose information to the Commissioner or to any other authority on the wrong-doing by a public authority concerning: (a) a serious threat to the health or safety of an individual or a serious threat to the public or the environment; (b) the commission of a criminal offence; (c) failure to comply with a legal obligation; (d) a miscarriage of justice; (e) corruption, dishonesty or serious maladministration, (f) abuse of authority or neglect in the performance of official duty; (g) injustice to an individual; (h) unauthorised use of public funds, and that person disclosing the information shall not be liable in any legal proceedings or to any sanction relating to his employment regardless of any breach of a legal or other obligation for disclosing such information if the information was disclosed in good faith and in the reasonable belief that it was substantially true. | |
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 | 9(1) Every public authority shall designate one of its officers as an information officer and ensure that members of the public have easy access to the information officer, including his or her name, function and contact details. | |
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 | 37 In addition to any other functions under this Act, the functions of the Commissioner shall be: (a) to monitor and report on the compliance by public bodies with their obligations under this Act; (b) to make recommendations for reforms of a general or specific nature to facilitate compliance with this Act; (c) to undertake or promote the training of officials of public bodies and other persons on the right to information and the effective implementation of this Act; (d) to refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences under this Act; and (e) to publicize the requirements of this Act and the rights and obligations under the Act. | |
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 | 8(1) The Commissioner shall, as soon as practicable, compile this Act a clear and simple guide containing practical information to facilitate the effective exercise of rights pursuant to this Act, and shall disseminate the guide widely in an accessible form. (2) The guide published under subsection (1) shall be updated on a regular basis. | |
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 | 9(2) The information officer shall, in addition to any obligations specifically provided for in other provisions of this Act, have the following. 12(1) Every public authority shall maintain its records in a manner which facilitates the right of access to information, as provided for in this Act, and in accordance with the Code of Practice issued pursuant to subsection (3). (b) to promote within the public authority the best possible practices in relation to record maintenance, archiving and disposal; | 9(2)(b) - Information Officers are meant to implement this. Reinforced by 12(1). |
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 | 13 Every public authority shall ensure the provision of appropriate training for 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 | 14 The information officer of a public authority shall, in each financial year, submit to the Commissioner a report on the activities of the public body pursuant to, or to promote compliance with, this Act, which shall include information about: (a) the number of requests for information received, granted in full or in part, or refused; (b) how often and which sections of this Act were relied upon to refuse, in part or in full, requests for information; (b) appeals from refusals to communicate information; (c) fees charged for requests for information; and (d) its activities pursuant to sections 10,11, and 12. | |
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 | 2 | 39(1) The Commissioner shall, within three months after the end of each financial year, prepare and submit to the Minister a report on the operations of the Office of the Commissioner during the preceding financial year and such other information as the Minister may direct in writing. (2) The Minister shall cause a copy of each annual report submitted pursuant to subsection (1) to be laid before the House of Representatives as soon as practicable after he has received the report. | Art 39 - commissioner presents their report to the minister, minister lays it before parliament. |
