Tanzania
Name of law: Access to Information Act, 2016
First adopted: 2016
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 2016
Last modified: n/a
RTI Rating last updated: n/a
Introduction
Tanzania’s law has some strengths, but its flaws ensure that it can rank no better than average. The scope is somewhat strong and covers all three branches of government. However, the exceptions regime is subpar in terms of compliance and clarity, as the regime's harm-test and public interest override are slightly ambiguous. There is also no trump provision, which permits exceptions found in other pieces of legislation. Additionally, another notable weakness is in its appeals structure, which does not provide an external administrative body to reconsider refused requests. This lack of administrative oversight also hinders the Tanzanian promotional measures mandate, which relatively weak.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 3 | 6 |
| 2 | Scope | 19 | 30 |
| 3 | Requesting Procedures | 15 | 30 |
| 4 | Exceptions & Refusal | 21 | 30 |
| 5 | Appeals | 7 | 30 |
| 6 | Sanctions & Protections | 5 | 8 |
| 7 | Promotional Measures | 3 | 16 |
| ∑ = 73 | ∑ = 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 | Section 18(b) & (d) of the Constitution: Every Person - (b) has a right to seek, receive and, or disseminate information (d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society. | This is just a general guarantee of freedom of expression closely based on international law - would need specific interpretation by the courts to include RTI. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | Section 5(1) Every person shall have the right of access to information which is under the control of information holders. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | Preamble: An Act to provide access to information; to define the scope of information which the public has the right to access; to promote transparency and accountability of information holders, and to provide for the other related matters. Section 4(d) promote routine and systematic information disclosure by information holders in compliance with the principles of accountability, transparency and public participation | Refers, in a somewhat unclear way, to limited benefits. No rule on interpretation. |
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 | NO | 0 | 5(4) For purposes of this section, “person” means a citizen of the United Republic | Only citizens. No reference to legal entities. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 2 | Section 3: "information" means any material which communicates facts, opinions, data or any other matter relating to the management, administration, operation or decisions of the information holder, regardless of its form or characteristics; "records" include any recorded information regardless of form or medium created, received and maintained by any information holder in the pursuance of its legal obligations or in the transaction of its business and providing evidence of the performance of those obligation or that business. | Both the definitions of information and record are limited to operational information. |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | Partially | 1 | 3. "Information" means any material which communicates facts, opinions, data or other matter relating to the management, administration, operations or decisions of the information holder, regardless of tits form or characteristics. | Seems broad but in fact there is no obligation to compile information from different documents. |
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 | 6 | Section 2(1) This Act shall apply to Mainland Tanzania. (2) Without prejudice to the provisions of subsection (1), this Act shall apply to: (a) public authorities Section 3: "public authority" means any authority established by or under the Constitution, an Act of Parliament, recognized under any written law as a form of public office or forms part of any level of government; | Only appears to cover statutory bodies and not other bodies which may be created by ministries to do their work for them. Does apply to all levels of government. Is restricted to Mainland Tanzania. |
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 | Section 2(1) This Act shall apply to Mainland Tanzania. (2) Without prejudice to the provisions of subsection (1), this Act shall apply to: (a) public authorities Section 3: "public authority" means any authority established by or under the Constitution, an Act of Parliament, recognized under any written law as a form of public office or forms part of any level of government; | This is presumably covered by the reference to any body established by the constitution or a law. |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | Section 2(1) This Act shall apply to Mainland Tanzania. (2) Without prejudice to the provisions of subsection (1), this Act shall apply to: (a) public authorities Section 3: "public authority" means any authority established by or under the Constitution, an Act of Parliament, recognized under any written law as a form of public office or forms part of any level of government; | This is presumably covered by the reference to any body established by the constitution or a law. |
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 | NO | 0 | Section 2(1) This Act shall apply to Mainland Tanzania. (2) Without prejudice to the provisions of subsection (1), this Act shall apply to: (a) public authorities Section 3: "public authority" means any authority established by or under the Constitution, an Act of Parliament, recognized under any written law as a form of public office or forms part of any level of government; | Some SOEs might be created by law but most would presumably not be. |
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 | Section 2(1) This Act shall apply to Mainland Tanzania. (2) Without prejudice to the provisions of subsection (1), this Act shall apply to: (a) public authorities Section 3: "public authority" means any authority established by or under the Constitution, an Act of Parliament, recognized under any written law as a form of public office or forms part of any level of government; | Covers all bodies created by law but presumably some of these bodies might not be created in that way. |
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 | Partially | 1 | Section 2(2)(b) private bodies registered under any written law : (i) utilize public funds; or (ii) are in possession of information which is of significant public interest. | Covers bodies which "utilise" public funds and which possess information of significant public interest but not all bodies that perform public functions. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | Regulation 6. Without prejudice to the provisions of section 10 of the Act, a person requesting access to information shall not be required by an information holder to give any reason for requesting the information or any other personal details other than those that may be necessary for communication with that person. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | 10(2)The request for information shall provide sufficient details to enable the information holder to identify the information and shall include name and address of the person requesting the information. Regulation 6. Without prejudice to the provisions of section 10 of the Act, a person requesting access to information shall not be required by an information holder to give any reason for requesting the information or any other personal details other than those that may be necessary for communication with that person. Note that the Request Form in the Regulations also calls for name, gender, address and telephone to be provided. | Need to provide name and address. Regulation 6 suggests otherwise but it cannot override the Act and also the Request Form calls for this information. |
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 | Section 10(1) A request for access to information shall be made in a prescribed form and addressed to the information holder; Section 10(3) For purposes of subsection (1), a request shall be treated as made in writing where the text of the request (a) is delivered by hand, postal, or transmitted by electronic means; (b) is received in legible form in the manner prescribed in the regulations; and (c) is capable of being used for subsequent reference | Need to provide name and address. Regulation 6 suggests otherwise but it cannot override the Act and also the Request Form calls for this information. |
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 | Section 7(2) An information officer shall deal with requests for information and render assistance to a person seeking such information | |
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 | Section 10(4) A person requesting who, because of illiteracy or disability is unable to make a written application for access to information, may make a request orally, and the officer to whom the request is made shall reduce the request into writing in the prescribed form and provide a copy of the written request to the person requesting. | |
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 | NO | 0 | N/A | Not mentioned apart from the notice for the decision on 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 | Section 13(1) Where the information holder to which a request for information is made considers that another information holder is the appropriate holder of the information requested, the information holder to which therequest was initially made may, as soon as practicable but not exceeding seven days after the request is received, transfer the request to such other information holder and give a written notice of the transfer to the person who made the request. | Transfers but grounds for transfer are too broad (other body is the "appropriate" body). |
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 | Section 17 (1) Access to information may be provided to a person in any of the following forms: (a) provision of a copy of the information; (b) delivery of a copy of the information in electronic form; (c) in the case of an information that is an article or another thing from which sounds of visual images are capable of being reproduced, by making arrangements for the person to hear or view sounds or visual images; (d) in the case of an information by which words are recorded in a manner in which they are capable of being reproduced in the form of sound of in which words are contained in shorthand writing or codified, by provision of a written transcript of the words recorded or contained in the information; (e) in the case of a person with a sensory disability, by provision of a record in a format that allows the person to read or listen to the record of the information. (2) Where a person who made the request has requested access in a particular form, the information holder may issue the information in a form he deems proper. (3) Where the form of access requested: (a) contravenes the provisions of the National Security Act; (b) interferes unreasonably with the operations of the information holder; (c) is detrimental to the preservation of the information or having regard to the physical nature of the information it is not appropriate; (d) would involve inordinate huge cost or time to the information holder; or (e) would involve an infringement of copyright other than a copyright owned by the government subsisting in the information, access in that form may be refused and given in another form. | System is not very clear especially as to the extent to which public authorities are required to respond to requesters' preferences in this area. |
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 | Section 11(1) Where access to information is requested, the information holder to which the request is made shall, as soon as practicable but not exceeding thirty days after the request is received- (a) give written notice to the person who made the request as to whether the information exists and, if it does, whether access to the information or a part thereof shall be given; and (b) if access is to be given, promptly give the person requesting access to the information or a part thereof in the manner prescribed under this Act. | |
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 | NO | 0 | Section 11(1) Where access to information is requested, the information holder to which the request is made shall, as soon as practicable but not exceeding thirty days after the request is received- (a) give written notice to the person who made the request as to whether the information exists and, if it does, whether access to the information or a part thereof shall be given; and (b) if access is to be given, promptly give the person requesting access to the information or a part thereof in the manner prescribed under this Act. Section 16(1) The information holder may defer the provision of access to information until the happenning of a particular event, including the taking of some action required by law or some administrative practices, or until the extension of a specified time, where it is reasonable to do so in the public interest or having regard to normal and proper administrative practices. (2) Where the provision of access to information is deffered, the information holder shall, in writing, inform the person requesting information the reasons for such decision and the period od which the defferement shall operate. | 30 calendar days but may be deferred on vague and discretionary grounds. |
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 | Partially | 1 | Section 11(1) Where access to information is requested, the information holder to which the request is made shall, as soon as practicable but not exceeding thirty days after the request is received- (a) give written notice to the person who made the request as to whether the information exists and, if it does, whether access to the information or a part thereof shall be given; and (b) if access is to be given, promptly give the person requesting access to the information or a part thereof in the manner prescribed under this Act. (2) Where the information holder requires further information in order to identify and locate the information requested, it shall, within fourteen days of receiving the request for information, notify the person requesting of the need for such further information and in that case, the period of fourteen days shall be reckinedfrom the date on which such futher information is received. Section 16(1) The information holder may defer the provision of access to information until the happening of a particular event, including the taking of some action required by law or some administrative practices, or until the extension of a specified time, where it is reasonable to do so in the public interest or having regard to normal and proper administrative practices. (2) Where the provision of access to information is deferred, the information holder shall, in writing, inform the person requesting information the reasons for such decision and the period od which the deferment shall operate. | Do not appear to be extensions but unclear rules on cases where clarification of the request is needed and, as noted above, time limits can be deferred on discretionary grounds. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | Section 21: The information holder from which a request for access to information has been made may charge fees necessary for covering actual costs for production of the requested information. | Refers to "actual costs" but what is covered by this is quite unclear. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | Not mentioned. | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | Section 18(1) Subject to the provisions of section 6, a person who receives the information from the information holder shall not distort such information. (2) Any person who contravenes the provisions of subsection (1) commits an offence and shall, upon conviction, be liable to imprisonment for a term not less than five years. | Very severe penalties (2-5 years' imprisonment) for "distorting" information. |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | Partially | 1 | Section 3: "exempt information" means any information, or document containing information, withheld by the information holder in accordance with section 6; Section 5(2) The information holder shall, subject to the provisions of section 6 and any other written laws, make available to the public or, on request, to any person, information which is under his control. | s. 3 refers only to s. 6 of the ATI Law but s. 5(2) explicitly refers to any other law. Likley that s. 5(2) will apply. |
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 | 7 | Section 3 as above. "exempt information" means any information, or document containing information, withheld by the information holder in accordance with section 6; Section 5(2) The information holder shall, subject to the provisions of section 6 and any other written laws, make available to the public or, on request, to any person, information which is under his control. Section 6: (1) Notwithstanding the provision of section 5, the information holder may withhold the information where he- (a) is satisfied that all the information or part of the information is exempted under subsection (2); and (b) determines, in accordance with this Act, that the disclosure is not justified in the public interest. (2) Exempt information may be withheld if the disclosure of such information is likely to- (a) undermine the defence, national security and international relations of the United Republic; (b) impede due process of law or endanger safety of life of any person; (c) undermine lawful investigations being conducted by a law enforcement agent; (d) facilitate or encourage the Commission of an offence; (e) involve unwarranted invasion of the privacy of an individual, other than an applicant or a person on whose behalf an application has been made; (f) infringe lawful commercial interests, including intellectual property rights of that information holder or a third party from whom information was obtained; (g) hinder or cause substantial harm to the Government to manage the economy; (h) significantly undermine the information holder’s ability to give adequate and judicious consideration to a matter of which no final decision has been taken and which remains the subject of active consideration; or (i) damage the information holder’s position in any actual or contemplated legal proceedings, or infringe professional privilege; (j) undermine Cabinet records and those of its committee; or (k) distort or dramatize record or data of court proceedings before the conclusion of the case. (3) For purposes of paragraph (a) of subsection (2), information relating to national security includes- (a) military strategy, doctrine, capability, capacity or deployment; (b) foreign government information with implications on national security; (c) intelligence operations or activities, sources or information capabilities, methods or cryptology; (d) foreign relations or foreign activities; (e) scientific, technology or economic matters relating to national security; or (f) vulnerabilities or capabilities | Professional privilege, Cabinet records and national security defined too broadly. S. 3 defines personal information too broadly but s. 6 exempts private informaiton in a proper way. |
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 | 3 | Section 3 as above. "exempt information" means any information, or document containing information, withheld by the information holder in accordance with section 6; Section 5(2) The information holder shall, subject to the provisions of section 6 and any other written laws, make available to the public or, on request, to any person, information which is under his control. Section 6: (1) Notwithstanding the provision of section 5, the information holder may withhold the information where he- (a) is satisfied that all the information or part of the information is exempted under subsection (2); and (b) determines, in accordance with this Act, that the disclosure is not justified in the public interest. (2) Exempt information may be withheld if the disclosure of such information is likely to- (a) undermine the defence, national security and international relations of the United Republic; (b) impede due process of law or endanger safety of life of any person; (c) undermine lawful investigations being conducted by a law enforcement agent; (d) facilitate or encourage the Commission of an offence; (e) involve unwarranted invasion of the privacy of an individual, other than an applicant or a person on whose behalf an application has been made; (f) infringe lawful commercial interests, including intellectual property rights of that information holder or a third party from whom information was obtained; (g) hinder or cause substantial harm to the Government to manage the economy; (h) significantly undermine the information holder’s ability to give adequate and judicious consideration to a matter of which no final decision has been taken and which remains the subject of active consideration; or (i) damage the information holder’s position in any actual or contemplated legal proceedings, or infringe professional privilege; (j) undermine Cabinet records and those of its committee; or (k) distort or dramatize record or data of court proceedings before the conclusion of the case. (3) For purposes of paragraph (a) of subsection (2), information relating to national security includes- (a) military strategy, doctrine, capability, capacity or deployment; (b) foreign government information with implications on national security; (c) intelligence operations or activities, sources or information capabilities, methods or cryptology; (d) foreign relations or foreign activities; (e) scientific, technology or economic matters relating to national security; or (f) vulnerabilities or capabilities | Dramatise court proceedings - not a proper harm. |
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 | Section 6(1)(b) determines, in accordance with this Act, that the disclosure is not justified in the public interest., Section 6(4) Paragraphs (f) and (g) of subsection (2) shall not apply if a request for information relates to the results of any product or environment testing, and the information concerned reveals a serious public safety or environmental risk. | Somewhat unclear but appears to be a public interest provision. Also a limited override for 6(2)(f) and (g). |
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 | Section 6(5) Unless the contrary is proved by the information holder, information shall be presumed not to be exempt if the information has been held for a period exceeding 30 years. | 30 year time limit. |
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 15(1) An information holder dealing wih a request for acces to information shall take all reasonable steps to notify any third party to whom or which any record containing the information requested relates. (2) The information holder acting under subsection (1) shall, within three days after the request is received, notify the third party. (3) Notification under subsection (2) shall: (a) state that the information holder is in receipt of the request for access to information; (b) describe the content of the request for access to information; (c) furnish the particulars of the person requesting information to the satisfaction of the information holder; and (d) inform the third party of the obligation to provide information (4) The provision of this Act relating to the request for access to information shall apply mutatis mutandis to the third party who received the notice under subsection (1). See also Regulation 8. | The law is not very clear but seems to be a system for consulting with third parties (says they have the rights of requesters but this does not quite work here because they need different rights). But this is clarified in the Regulations. |
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 | Section 6 (1) Notwithstanding the provision of section 5, the information holder may withhold the information where he- (a) is satisfied that all the information or part of the information is exempted under subsection (2) Section 11(1) Where access to information is requested, the information holder to which the request is made shall, as soon as practicable but not exceeding thirty days after the request is received- (a) give written notice to the person who made the request as to whether the information exists and, if it does, whether access to the information or part thereof shall be given; and (b) if access is to be given, promptly give the person requesting access to the information or part thereof in a manner prescribed under this Act. Section 14(1) Where the information holder refuses to give access to information requested, either in whole or in part, such information holder shall, in writing, notify the person requesting the information of the refusal and shall, in the notification: (a) set out reasons for the refusal and all material issues relating to the decision, including the specific provision of this Act and the factors taken into consideration in relation to the public interest; (b) inform the person who made the request of the availability of a review in accordance with section 19 within which an application for review may be made; (c) where the decision is to the effect that the information does not exist, state that a thorough and diligent search was made to locate the information. Regulation 7.(1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding the provision of the Act, access may be provided to part of the information which does not contain any information which is exempt from disclosure under the Act and which can reasonably be severed from any part that contains exempt information. (2) Where access is granted to a part of an information under sub-regulation (1), an information holder shall give a notice to the applicant informing the following: (a) that only part of the information requested, after severance of the information which is exempt from disclosure, is provided; (b) the reason for the decision; and (c) the name and designation of the person giving the decision; (d) his rights with respect to review regarding non disclosure of part of the information. | The law includes several references to part of the information being exempt but not clear that, in this case, the rest must be disclosed if possible. But this seems to be clarified in the Regulations. |
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 | Section 11(1) Where access to information is requested, the information holder to which the request is made shall, as soon as practicable but not exceeding thirty days after the request is received- (a) give written notice to the person who made the request as to whether the information exists and, if it does, whether access to the information or part thereof shall be given; and (b) if access is to be given, promptly give the person requesting access to the information or part thereof in a manner prescribed under this Act. Section 14(1) Where the information holder refuses to give access to information requested, either in whole or in part, such information holder shall, in writing, notify the person requesting the information of the refusal and shall, in the notification: (a) set out reasons for the refusal and all material issues relating to the decision, including the specific provision of this Act and the factors taken into consideration in relation to the public interest; (b) inform the person who made the request of the availability of a review in accordance with section 19 within which an application for review may be made; (c) where the decision is to the effect that the information does not exist, state that a thorough and diligent search was made to locate the information. See also Regulation 7(2) for severed information. | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | Section 19(1) A person who, having made a request for information, is aggrieved by a decision of the information holder in relation to the request, may apply to the head of institution for review of the decision in respect of any of the following: (a) refusal of access by the information holder to the information requested; (b) payment of fees or charges which the person considers unreasonable; (c) failure of the information holder to comply with time limits set out under this Act; (d) any other matter relating to a request for or access to information made under this Act. (2) The head of institution shall, within thirty days of receiving an application made under subsection (1), determine such application for review in accordance with its own laid down procedures. (3) Any party aggrieved by the decision of the head of institution made under subsection (2) may, within thirty days from the date of receiving such decision, appeal to the Minister whose decision shall be final | 30 calendar days. |
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 | NO | 0 | N/A | No external appeal to an administrative body. |
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 | N/A | |
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 | NO | 0 | N/A | |
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 | NO | 0 | N/A | |
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 | N/A | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | NO | 0 | N/A | |
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 | NO | 0 | N/A | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | Partially | 1 | Section 19(4) Notwithstanding subsection (3), where the requested information is within the authority of an information holder who is under the Minister, the Minister shall cease to be the appellate body and any aggrieved person may apply to the High Court for review. | Only if the original body is under the authority of a minister. |
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 | N/A | Presumably there are costs to court appeals and, in practice at least, legal assistance is required. |
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 | Section 19(1) A person who, having made a request for information, is aggrieved by a decision of the information holder in relation to the request, may apply to the head of institution for review of the decision in respect of any of the following: (a) refusal of access by the information holder to the information requested; (b) payment of fees or charges which the person considers unreasonable; (c) failure of the information holder to comply with time limits set out under this Act; (d) any other matter relating to a request for or access to information made under this Act. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | NO | 0 | N/A | No special provisions on procedures for appeals before the courts.. |
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 | N/A | 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 | NO | 0 | N/A | Not mentioned. |
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 | Section 22: A person who alters, defaces, blocks, erases, destroys or conceals any information held by the information holder, with the intention of preventing the disclosure by such information holder, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding twelve months 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 | 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 | Partially | 1 | Section 6(6) Any person who- (a) disclose exempt information, other than information relating to national security, commits an offence and shall, on conviction be liable to imprisonment for a term not less than three years but not exceeding five years. (b) discloses exempt information relating to national security, commits offence and the provisions of the National Security Act shall apply. Section 24: Officers in the service or employment of any information holder shall not be subject to any civil or criminal liability for any act done or omitted to be done in good faith in the exercise or performance of any power or duty under this Act | Appears to be a contradiction between s. 6(6), which provides for penalties for those who wrongly disclose exempt information and s. 24, which provides for protections for those who disclose 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 | Section 4(e) provide for the protection of persons who release information of public interest in good faith. Section 23(1) A person in the service or employment of any information holder shall not be subject to any legal, administrative or employment related sanctions for releasing information on wrongdoing, or information which would disclose a serious threat to health, safety or the environment, as long as that person acted in good faith and in the reasonable belief that the information was substantially true. (2) For purposes of subsection (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or malady | s. 4(e) provides for this sort of protection as a general objective, while s. 23 provides concrete protection |
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 | 7(1) Every information holder shall appoint one or more officers as information officers. (2) An information officer shall deal with requests for information and render assistance to a person seeking such information. (3) Where an information holder failes to appoint an information officer, the head of such institution shall be the information officer for the purpose of this Act. Regulation 4.(1) The publication scheme shall, at a minimum, contain the following:- (a) the full name, designation, functions and contact details of an information officer appointed and maintained by an information holder in accordance with the provisions of section 7 of the Act; (b) clear statement that- (i) describes the nature, organization, functions and powers of the information holder concerned; | |
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 | NO | 0 | N/A | Not mentioned. |
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 | N/A | 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 | NO | 0 | 8(1) Every information holder shall maintain record of information that is under the control of such information holder. (2) For the purpose of subsection (1), the information holder shall maintain every record for a period of not less than thirty years after a date on which the information came under the control of the information holder. | Provides for terms for maintaining information but not a system for records management. |
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 | Partially | 1 | 9(1) Every information holder shall, not later than thirty six months after the commencement of this Act, issue a notice to the public in the Gazette, website or newspaper of wide circulation containing the following- … (c) a general description of categories of information held by such information holder. Regulation 4.(1) The publication scheme shall, at a minimum, contain the following:- (c) a fair description of the types and categories of documents and information held by the information holder, the location of the documents and a clear statement of the public right to review, request, receive and retain copies of any such information; | Required to publish a list of the categories of information held. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
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 | NO | 0 | N/A | Not mentioned. |
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 | NO | 0 | N/A | Not mentioned. |
