Malta
Name of law: Freedom of Information Act
First adopted: 2008
Last modified: n/a
RTI Rating last updated: 2011-08
First adopted: 2008
Last modified: n/a
RTI Rating last updated: 2011-08
Introduction
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 0 | 6 |
| 2 | Scope | 19 | 30 |
| 3 | Requesting Procedures | 21 | 30 |
| 4 | Exceptions & Refusal | 12 | 30 |
| 5 | Appeals | 10 | 30 |
| 6 | Sanctions & Protections | 2 | 8 |
| 7 | Promotional Measures | 14 | 16 |
| ∑ = 78 | ∑ = 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 | Link to the Constitution of Malta (English version) can be found here. |
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 | NO | 0 | Not mentioned. | |
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 | NO | 0 | Not mentioned. | |
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 | Art. 3. "Any eligible person has a right of access to documents held by public authorities in accordance with and subject to the provisions of this Act." | Art. 2 defines eligible person as resident, citizens from Malta, EU citizens or citizens from other countries with which there is a treaty that include the right of access to information. |
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. 2. "<...> "document" means any article that is held by a public authority and on which information has been recorded in whatever form, including electronic data, images, scale models and other visual representations, and audio or video recordings, regardless of whether the information can be read, seen, heard or retrieved with or without the aid of any other article or device; <...>" | |
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. 3. "Any eligible person has a right of access to documents held by public authorities in accordance with and subject to the provisions of this Act." | Art. 2. "<...> "document" means any article that is held by a public authority and on which information has been recorded in whatever form, including electronic data, images, scale models and other visual representations, and audio or video recordings, regardless of whether the information can be read, seen, heard or retrieved with or without the aid of any other article or device; <...>" |
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 | 3 | Art. 2. "<...> "public authority" means: (a) the Government, including any ministry or department thereof; (b) a Government agency established in terms of the Public Administration Act or any other law; and (c) any body established under any law, or any partnership or other body in which the Government of Malta, a Government agency or any such body as aforesaid has a controlling interest or over which it has effective control; 5. (1) Subject to sub-article (2), this Act shall not apply to documents that - (a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act; (c) have been transferred to the National Archives in accordance with the National Archives Act; (4) This Act shall not apply to documents held by: (a) the Electoral Commission; (b) the Employment Commission; (c) the Public Service Commission; (d) the Office of the Attorney General; (e) the National Audit Office; (f) the Security Service; or (g) the Broadcasting Authority, in so far as such documents relate to its functions under article 119(1) of the Constitution; or (h) the Ombudsman." | Excludes the information held by the Local Council and archives. Also excludes many other institutions and documents which access is regulated in other laws. |
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 | Partially | 3 | Art. 2. "<..> "public authority" means: (a) the Government, including any ministry or department thereof; (b) a Government agency established in terms of the Public Administration Act or any other law; and (c) any body established under any law, or any partnership or other body in which the Government of Malta, a Government agency or any such body as aforesaid has a controlling interest or over which it has effective control; 5. (1) Subject to sub-article (2), this Act shall not apply to documents that - (a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act; (c) have been transferred to the National Archives in accordance with the National Archives Act; (4) This Act shall not apply to documents held by: (a) the Electoral Commission; (b) the Employment Commission; (c) the Public Service Commission; (d) the Office of the Attorney General; (e) the National Audit Office; (f) the Security Service; or (g) the Broadcasting Authority, in so far as such documents relate to its functions under article 119(1) of the Constitution; or (h) the Ombudsman." | |
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 | Partially | 3 | Art. 2. "<...> "public authority" means: (a) the Government, including any ministry or department thereof; (b) a Government agency established in terms of the Public Administration Act or any other law; and (c) any body established under any law, or any partnership or other body in which the Government of Malta, a Government agency or any such body as aforesaid has a controlling interest or over which it has effective control; 5. (1) Subject to subarticle (2), this Act shall not apply to documents that - (a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act; (c) have been transferred to the National Archives in accordance with the National Archives Act; (4) This Act shall not apply to documents held by: (a) the Electoral Commission; (b) the Employment Commission; (c) the Public Service Commission; (d) the Office of the Attorney General; (e) the National Audit Office; (f) the Security Service; or (g) the Broadcasting Authority, in so far as such documents relate to its functions under article 119(1) of the Constitution; or (h) the Ombudsman." | |
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 | Partially | 1 | Art. 2. "<...> "public authority" means: (a) the Government, including any ministry or department thereof; (b) a Government agency established in terms of the Public Administration Act or any other law; and (c) any body established under any law, or any partnership or other body in which the Government of Malta, a Government agency or any such body as aforesaid has a controlling interest or over which it has effective control; 5. (1) Subject to subarticle (2), this Act shall not apply to documents that - (a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act; (c) have been transferred to the National Archives in accordance with the National Archives Act; (4) This Act shall not apply to documents held by: (a) the Electoral Commission; (b) the Employment Commission; (c) the Public Service Commission; (d) the Office of the Attorney General; (e) the National Audit Office; (f) the Security Service; or (g) the Broadcasting Authority, in so far as such documents relate to its functions under article 119(1) of the Constitution; or (h) the Ombudsman." | |
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 | NO | 0 | Art. 5. "(1) Subject to subarticle (2), this Act shall not apply to documents that - Cap. 363. (a) are held by a Local Council and are accordingly subject to article 45 of the Local Councils Act ; (b) are subject to the Freedom of Access to Information on the Environment Regulations or to any other regulations made under the Environment Protection Act and providing for freedom of access to information; Cap. 477. (c) have been transferred to the National Archives in accordance with the National Archives Act; (d) are accessible to the public under any other law; (e) are available for purchase by the public in accordance with arrangements made by a public authority; or (f) are held by a commercial partnership in which the Government or another public authority has a controlling interest, in so far as the documents in question relate to the commercial activities of the commercial partnership." | Election commission, Ombusdman, National Audit are excluded |
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 | Art. 2. definition of public authority. Art. 18. (1) Regulations may be issued under this Act to establish a right of access to information which is held by bodies or persons other than public authorities or the employees thereof, and which pertains to: (a) services provided to the public by such bodies or persons on behalf of the Government or another public authority; or (b) projects or initiatives which are undertaken by such bodies or persons but financed by the Government or another public authority. (2) The giving of access to any information to which subarticle (1) applies shall be subject to the provisions of any regulations made under this Act." | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | NO | 2 | Art. 6. "(2) No applicant shall be required to justify or give any reasons for a request under this Act, and any beliefs of public authorities as to what are the applicant's reasons for seeking access shall not affect that request." | |
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 | NO | 0 | Art. 6. "(1) An applicant's request to a public authority in terms of article 3 shall - (a) be delivered in writing, including by post or electronically, subject to paragraph (e), to an office of the public authority; and (b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the public authority to identify it; and (c) include a copy of the applicant's identity card or residence permit, or make reference to the identity card or residence permit in such a way as may be specified by regulations issued under article 42(a); (d) specify a postal address at which notices under this Act may, if necessary, be sent to the applicant; and (e) be accompanied by any fee payable in accordance with article 9(3)." | |
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 | Art. 6."(1) An applicant's request to a public authority in terms of article 3 shall - (a) be delivered in writing, including by post or electronically, subject to paragraph (e), to an office of the public authority; and (b) provide such information concerning the document as is reasonably necessary to enable a responsible officer of the public authority to identify it; and (c) include a copy of the applicant's legally valid identification document or residence permit, or make reference to a legally valid identification document or residence permit in such a way as may be specified by regulations issued under article 4(a); (d) specify a postal address at which notices under this Act may, if necessary, be sent to the applicant; and (e) be accompanied by any fee payable in accordance with article 9(3)." | |
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. 7. "Where an eligible person - (a) wishes to make a request to a public authority; or (b) has made to a public authority a request that does not comply with article 6, it is the duty of the public authority to take reasonable steps to assist the person to make the request in a manner that complies with article 6, and it shall do so at no charge." | |
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. 7. "Where an eligible person - (a) wishes to make a request to a public authority; or (b) has made to a public authority a request that does not comply with article 6, it is the duty of the public authority to take reasonable steps to assist the person to make the request in a manner that complies with article 6, and it shall do so at no charge." | |
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 | Point 3.3 of the Code of Practice mentions the issue of acknowledgements that may be delivered in electronic format if the applicant supplies an electronic address. In practice this goes together with the IT system workflow (mentioned in point 2.6) which is currently in place. All requests sent, whether by hand or in electronic format (through the FOI web portal www.foi.gov.mt) will be logged onto a system which sends instant acknowledgements. | |
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 | Art. 8. "Where a request in accordance with article 6 is made to a public authority, and the document to which the request relates is not held by the authority but is believed by the person dealing with the request to be held by another public authority, the public authority to which the request is made shall promptly, and in any case not later than ten working days after the day on which the request is received, transfer the request to the other public authority and inform the applicant accordingly." | |
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 | Partially | 1 | Art. 12. "(2) Subject to article 13, the public authority shall make the document available to the applicant in the way preferred by the applicant unless to do so would - (a) impair efficient administration; or (b) be contrary to any legal duty of the public authority in respect of the document; or (c) prejudice the interests protected by Part V and Part VI and (in the case of the interests protected by Part VI) those interests are not outweighed by a contrary public interest." | |
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.10. "Subject to this Act, the public authority to which a request is made in accordance with article 6 or is transferred in accordance with article 8 shall, as soon as reasonably practicable, and in any case not later than twenty working days after the day on which the request is received by the authority - (a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and (b) inform the applicant accordingly in writing." | |
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. 10. "Subject to this Act, the public authority to which a request is made in accordance with article 6 or is transferred in accordance with article 8 shall, as soon as reasonably practicable, and in any case not later than twenty working days after the day on which the request is received by the authority - (a) decide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any); and (b) inform the applicant accordingly in writing." | 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 | Art. 11. "(1) Where a request in accordance with article 6 is made or transferred to a public authority, the authority may extend the time limit set out in article 10 by up to forty working days in respect of the request if - (a) the request is for a large number of documents or necessitates a search through a large number of documents, and meeting the original time limit would unreasonably interfere with the operations of the public authority; or (b) consultations necessary to make a decision on the request are such that a proper response to the request cannot reasonably be made within the original time limit. (2) Any extension under subarticle (1) shall be for a reasonable period of time having regard to the circumstances. (3) The extension shall be effected by giving notice to the person who made the request within twenty working days after the day on which the request is received, and the notice shall - (a) specify the period of the extension; (b) give the reasons for the extension; (c) state that the applicant has the right under article 23 to make a complaint to the Commissioner about the extension; and (d) contain such other information as is necessary." | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | Partially | 1 | Art. 9. "(1) Subject to subarticle (2) and to any regulations issued under this Act, a public authority may charge a fee to an applicant for access to a document in accordance with this Act." | It is free to file a request although the request shall include the fees to be paid for accessing the document. |
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 | Art. 9. "(1) Subject to subarticle (2) and to any regulations issued under this Act, a public authority may charge a fee to an applicant for access to a document in accordance with this Act. (2) Any fee set by a public authority shall not exceed the cost of making a document available to the applicant, whereas if regulations issued as aforesaid prescribe a range of standard fees, such fees shall not exceed the average cost of ma king documents available to applicants.(3) Regulations issued as aforesaid may provide for the payment of a fee specifically for the processing of a request for access to documents, and for the payment of such a fee on presentation of the request. (4) Where a public authority decides to charge an applicant a fee, it shall advise him accordingly and inform him that he has the right to complain to the Commissioner under article 23 if he feels that the fee is excessive: Provided that if the fee is a standard fee established by regulations under this Act, the Commissioner may in response to such a complaint inquire only into whether the regulations have been correctly applied.(5) A public authority may waive any fees payable in respect of a particular application if, in the opinion of the authority - (a) the fee payable is so small as to be not worth collecting; or (b) payment of the fee would cause financial hardship to the applicant, bearing in mind the applicant's means and circumstances; or (c) disclosure of the information requested is in the public interest. (6) Where a public authority fail s to meet the time limit set by article 10 or, if applicable, article 11, it shall not charge any fee for access to a document." | The fees are set by public authorities for access. In case there is a regulation for fees it must be applied. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | YES | 2 | Art. 9. "(5) A public authority may waive any fees payable in respect of a particular application if, in the opinion of the authority - (a) the fee payable is so small as to be not worth collecting; or (b) payment of the fee would cause financial hardship to the applicant, bearing in mind the applicant's means and circumstances; or (c) disclosure of the information requested is in the public interest." | |
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 | 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 | NO | 0 | Not mentioned. | |
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 | 3 | Art. 5. "(3) This Act shall not apply to documents in so far as such documents contain - (a) personal data subject to the Data Protection Act; or (b) information the disclosure of which is prohibited by any other law:Provided that where it is possible to release a document with such data or information deleted, this shall be done in accordance with article 13(1) and (2)." | |
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 | NO | 0 | Not mentioned. | |
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 | Art. 35. "(1) This Part shall apply subject to the provisions of Part V. (2) A document may be withheld in accordance with the provisions of this Part only if it contains matter in relation to which the public interest that is served by non-disclosure outweighs the public interest in disclosure." | |
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 | NO | 0 | Not mentioned. | |
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 | Section 6 of the Code of Practice. | |
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. 5. "3. Provided that where it is possible to release a document with such data or information deleted, this shall be done in accordance with article 13(1) and (2)." Art. 13. "(1) Where a request is made to a public authority for a document which is an exempt document, but - (a) it is possible for the public authority to make a copy of the document with the deletion of the exempt matter; and (b) it is reasonably practical for the public authority, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy, the public authority shall make such a copy available to the applicant." | |
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. 15. "(1) Where a request made in accordance with this Act is refused, the public authority shall - (a) subject to article 34, give the applicant the reasons for the refusal; and (b) state that the applicant has the right, under article 23, to seek an investigation and review by the Commissioner of the refusal." | |
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 | Check code of practice - article 41. | |
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. 15. "b. state that the applicant has the right, under article 23, to seek an investigation and review by the Commissioner of the refusal." Art. 23. "(1) Any applicant may apply to the Commissioner for a decision whether, in any specified respect -(a) a request for information made by the applicant to a public authority has been dealt with in accordance with the requirements of this Act; or(b) a public authority is in compliance with the requirements set out in Part III.(2) On receiving an application under this article, the Commissioner shall make a decision unless it appears to him -(a) that the applicant has not exhausted any complaints procedure which may be provided by the public authority in conformity with the code of practice issued under article 41:Provided that the Commissioner may decide on the application if in his opinion the complaints procedure provided by the public authority has not been, or is unlikely to be, concluded within a reasonable period;(b) that there has been undue delay in making the application;(c) that the application is frivolous or vexatious; or(d) that the application has been withdrawn or abandoned.(3) Where the Commissioner has received an application under this article, he shall either -(a) notify the applicant that he has not made any decision under this article as a result of the application and of his grounds for not doing so; or(b) serve notice of his decision (in this Act referred to as a"decision notice") on the applicant and the public authority.(4) Where the Commissioner decides that a public authority -(a) has failed to provide access to a document, or to confirm or deny the existence of a document, in a case where it is required to do so under this Act; or(b) has failed to comply with any of the other requirements of Part II in its handling of the applicant's request for a document; or(c) has failed to comply with any of the requirements of Part III, the decision notice shall specify the steps which must be taken byte authority for complying with that requirement and the period within which they must be taken.(5) A decision notice shall contain particulars of the right of appeal conferred by article 39. (6) Where a decision notice requires steps to be taken by the public authority within a specified period, the time specified in the notice shall not expire before the end of the period within which an appeal can be brought against the notice and, if such an appeal is brought, no step which is affected by the appeal need be taken pending the determination or withdrawal of the appeal.(7) This article shall have effect subject to article 26." | |
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 | NO | 0 | Not mentioned. | |
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. 23. "(1) Any applicant may apply to the Commissioner for a decision whether, in any specified respect - (a) a request for information made by the applicant to a public authority has been dealt with in accordance with the requirements of this Act; or (b) a public authority is in compliance with the requirements set out in Part III." | |
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 | Arts. 24 and 25. | Art. 24 establishes the information notice and Art. 25 establishes the enforcement notice. |
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 | NO | 0 | Art. 24. | Art. 24. The Commissioner has to determine whether the government has complied with the requirement of this act. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | Partially | 1 | Art. 26. "(1) A decision or enforcement notice issued by the Commissioner in respect of the disclosure of a document shall not have effect if the Prime Minister certifies to the Commissioner that, in his opinion, the document is an exempt document in terms of any of the provisions of Part V. (2) A certificate under this article shall contain a statement by the Prime Minister of the reasons for his opinion, except in so far as this would involve the disclosure of matter that is exempt matter in terms of the provisions of Part V. (3) Where the Prime Minister issues a certificate under this article, he shall as soon as practicable thereafter lay a copy of it before the House of Representatives. (4) Where the Commissioner receives a certificate under this article in respect of a decision not ice, he shall inform the applicant accordingly." | The commissioner can enforce the publication of information but can't review classified documents. In fact the Prime Minister can revoke a commissioner decision. |
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 | Partially | 1 | Art. 26. "(1) A decision or enforcement notice issued by the Commissioner in respect of the disclosure of a document shall not have effect if the Prime Minister certifies to the Commissioner that, in his opinion, the document is an exempt document in terms of any of the provisions of Part V. (2) A certificate under this article shall contain a statement by the Prime Minister of the reasons for his opinion, except in so far as this would involve the disclosure of matter that is exempt matter in terms of the provisions of Part V. (3) Where the Prime Minister issues a certificate under this article, he shall as soon as practicable thereafter lay a copy of it before the House of Representatives. (4) Where the Commissioner receives a certificate under this article in respect of a decision not ice, he shall inform the applicant accordingly." | The commissioner can enforce the publication of information but can't review classified documents. In fact the Prime Minister can revoke a commissioner decision. |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | NO | 0 | Not mentioned. | |
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 | NO | 0 | Not mentioned. | |
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 | NO | 0 | Not mentioned. | |
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 | NO | 0 | Not mentioned. | |
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 | NO | 0 | Not mentioned. | |
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. 39. "(1) Where a decision notice ha s been served, the applicant or the public authority may appeal to the Tribunal against the notice within twenty working days." | Art. 39 establishes the right to appeal the Commissioner decisions to the Tribunal. |
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. 27 establishes that the Commissioner can levy administrative fines to those who fail to comply with his notices. Art. 43. Art. 144 of the Criminal Code shall apply to any person who embezzles, destroys, mutilates or purloins a document with the intent ion of preventing the disclosure of information to an applicant under this Act. | The Criminal Code can be found here. |
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 | 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 | NO | 0 | Not mentioned. | |
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. | |
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 | Section 1.0 of the Code of Practice. | |
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 | Section 2.0 of the Code of Practice. | |
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 | NO | 0 | Not mentioned. | |
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 | Section 9.0 of the Code of Practice. | |
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 | YES | 2 | FOIA Art.17. (3) "Each public authority shall update the material published in accordance with subarticles (1) and (2) at least annually, or at more frequent intervals as may be established by regulations issued under subarticle (2)." Section 9.0 of the Code of Practice. | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | Specified in point 2.2(b) of the Code of Practice. | |
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 | This is mentioned in point 1.9 of the Code of Practice, which explains that the officer nominated as Principal FOI Officer (who has the role of monitoring and liaising all FOI officers within a Ministry) is to provide a report to the Information and Data Protection Commissioner. In this case, the Principal FOI Officer would be acting on behalf of all the Public Authorities within that Ministry. | |
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 | Art. 21. "(5) Within three months following the end of each calendar year the Commissioner shall prepare and submit to the Minister an annual report on the workings of this Act during that year, and the Minister shall at the first available opportunity cause a copy of the report to be laid on the table of the House of Representatives; the report shall state: (a) how many requests for information under this Act have been made to public authorities; (b) how many of these requests have been accepted and rejected; (c) the reasons for rejection; (d) the average time taken to reply to requests; (e) how many complaints have been made to the Commissioner, the grounds for such complaints, and the outcome thereof; (f) the number of appeals lodged with the Tribunal and how they have been determined; and (g) the number of information, decision and enforcement notices issued by the Commissioner." 9.5 of the Code of Practice. |
