Right to Information

1
Commonwealth Human Rights Initiative
Right to Information
A Power Tool for Citizens
presentation
by
Venkatesh Nayak
www.humanrightsinitiative.org
2
Good Governance in Bangladesh Limiting Factors
Corruption, Opacity Lack of Accountability

• 75 90 people experience corruption when
  visiting govt. offices

• First cause for people not receiving scheduled
  services from govt. departments

Lack of transparency and accountability

• First reason for non-cooperation in govt.
  departments

Transparency and accountability should be ensured
Requirements of Good Governance (among others)
Official Secrecy Act Should be modernised
(Excerpts from - Preparation of PRSP A Status
Report, Govt. of Bangladesh, July 14, 2004)
3
Good Governance The Millennium Declaration
We will spare no effort to free our fellow men,
women and children from the abject and
dehumanizing conditions of extreme poverty, to
which more than a billion of them are currently
subjected
We resolve therefore to create an environment
 at the national and global levels alike which
is conducive to development and to the
elimination of poverty.
Success in meeting these objectives depends,
inter alia, on good governance within each
country.
(Adopted in September 2000 by 190 member
countries of the UN General Assembly - including
Bangladesh)
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Key Attributes of Good Governance

• Transparency
• Responsibility
• Accountability
• Participation and
• Responsiveness (to the needs of the people)

Good governance creates an enabling environment
conducive to the enjoyment of human rights and
prompts growth and sustainable human
development.
(UN Commission on Human Rights Charter Body
attached to ECOSOC that monitors human rights
situation in all member countries of the UN)
Bangladesh will become a member of ECOSOC in
2006
5
Good Governance and Sustainable Development

• Each country has the primary responsibility for
  its own sustainable development.

• All countries should strengthen governmental
  institutions by providing necessary
  infrastructure and by promoting transparency,
  accountability and fair administrative and
  judicial institutions.

• They should also foster full public participation
  in sustainable development policy formulation and
  implementation.

• All countries should promote public
  participation, including through measures that
  provide access to information regarding
  legislation, regulations, activities, policies
  and programmes

Johannesburg Plan of Implementation of Agenda
21 World Summit on Sustainable Development
(Rio10 Summit) , 2002 Bangladesh is a signatory
to this document
6
Bangladesh reacts after WSSD
Courtesy SDNP Bangladesh, news release dated
September 15, 2002
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Right to Information(RTI) in a Democracy
Communiqué from the Commonwealth Law Ministers
Meeting, 1980
Public participation in the democratic and
governmental process - most meaningful when
citizens have adequate access to official
information
Communiqué from the Commonwealth Law Ministers
Meeting, 1999
freedom of information enhances accountability
of the government improves decision-making and
provides a powerful aid in the fight against
corruption
Report of the Commonwealth Expert Group on
Democracy and Development, 2003
(among others )
Bangladesh is a member of the Commonwealth
8
Access to information is a human right
Right to information inextricably connected
with the right to freedom of opinion, speech
expression
Everyone has the right to freedom of opinion and
expression this right includes freedom to
seek, receive and impart information
Universal Declaration of Human Rights (Art. 19)
International Covenant on Civil and Political
Rights (Art. 19)
(Bangladesh acceded to the ICCPR in December
2000)
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Right to information E-S Rights
Right to Water
Accessibility to water includes information
accessibility i.e., right to seek receive and
impart information concerning water issues
ICESCR General Comment 15, 2002 Art. (9)(c)(3)
Individuals and groups should be given full and
equal access to information concerning water,
water services and the environment, held by
public authorities or third parties
ICESCR General Comment 15, 2002 Art.45
Right to Adequate Food
States have an obligation to formulate and
implement national strategies for the right to
food in full compliance with the principles of
accountability, transparency, peoples
participation
ICESCR General Comment 12, 1999 Art. 23
(Bangladesh acceded to the ICESCR in January 1999)
10
Right to information E-S Rights
Right to Health
Accessibility to the highest attainable standard
of health includes information accessibility
i.e., right to seek receive and impart
information concerning health issues subject to
confidentiality of information about personal
health
ICESCR General Comment 14, 2002 Art. (12)(b)(4)
Right to maternal child and reproductive health
includes access to information (on these issues)
ICESCR General Comment 14, 2002 Art. 14
State Parties have a duty to ensure that third
parties do not limit peoples access to health
related information and services
ICESCR General Comment 14, 2002 Art. 35
State Parties have an obligation to provide
education and access to information concerning
the main health problems in the community
including methods of preventing and controlling
them
ICESCR General Comment 14, 2002 Art. (44)(d)
(Bangladesh acceded to the ICESCR in January 1999)
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Right to information E-S Rights
Right to Adequate Housing
In the case of evictions appropriate procedural
protection and due process of law includes
information on the proposed eviction and the
alternative purpose for which that land or
housing is to be used
ICESCR General Comment 7, 1997 Art. 15
Right to Education
State Parties have an obligation to maintain a
transparent and effective system which monitors
whether or not education is directed to the
educational objectives set out (in the Covenant)
State Parties have an obligation to maintain a
transparent and effective system to monitor
educational standards in educational
institutions. Non-adherence to this duty is
violation of rt. to education
ICESCR General Comment 13, 1999 Art.49, 54 59
(Bangladesh acceded to the ICESCR in January 1999)
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Right to information in CEDAW
State Parties must guarantee all women on a
non-discriminatory basis -

• Access to specific educational information to
  help to ensure the health and well-being of
  families, including information and advice on
  family planning. Art. 10 (h)

• For rural women in particular, ensure the right
  to have access to adequate health care
  facilities, including information, counselling
  and services in family planning Art.
  14 (b)

• Eliminate discrimination against women in matters
  relating to marriage and family relations and
  ensure the right to decide freely and responsibly
  on the number and spacing of their children and
  to have access to the information, education and
  means to enable them to exercise these rights
  Art. 16 (1)(e)

(Bangladesh acceded to the ICEDAW in December
1984 and ratified the Optional Protocol in
December 2000)
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Right to information in Child Rights Charter
Overarching right of access -

• The child shall have the right to freedom of
  expression this right shall include freedom to
  seek, receive and impart information and ideas of
  all kinds, regardless of frontiers, either
  orally, in writing or in print, in the form of
  art, or through any other media of the child's
  choice. Art. 13 (1)

Children with disabilities -

• State Parties have a duty to make educational and
  vocational information and guidance available and
  accessible to all children on a
  non-discriminatory basis Art. 28
  (1)(d)

In the case of a refugee child -

• State Parties have a duty to cooperate with the
  UN and other competent IGOs and NGOs to protect
  and assist a refugee child and to trace the
  parents or other members of the family of any
  refugee child in order to obtain information
  necessary for reunification with his or her
  family. Art. 22 (2)

(Bangladesh acceded to the ICRC in September 1990
and ratified the Optional Protocols 1 2 in
February and January 2002 respectively)
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Right of citizens Obligation of the State
Citizens Right
States Obligation
right to know what governments are doing on their
behalf
positive obligation to ensure access with regard
to information held by Government in all types of
storage and retrieval systems
(Joint Declaration adopted by the UNSR-FOE, the
OSCE Rep. on Freedom of the Media and the OAS
Special Rapporteur on Freedom of Expression, 1999)

(UN Special Rapporteur on Freedom of Opinion and
Expression UNSR-FOE, 1997)
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Commonwealth Freedom of Information Principles

• Member countries should be encouraged to regard
  freedom of information as a legal and enforceable
  right

• There should be presumption in favour of
  disclosure and Govts. should promote a culture of
  openness

• RTI may be subject to limited but narrowly drawn
  exemptions

• Govts. should maintain and preserve records

• Decision to refuse records should be subject to
  independent review

(Communiqué of the Commonwealth Law Ministers
Meeting 1999)
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Status of RTI around the World

• Several countries guarantee access to information
  or freedom of information as a fundamental right

• Over 50 countries around the world have
  information access

another 30 will have them soon
Commonwealth only 11 countries including
Jamaica, Trinidad Tobago
Sweden oldest access law (1766)

• All S. Asian countries have constitutional
  guarantees of freedom of speech , expression
  and/or information

• At the national level, only Pakistan has an
  operational access law in S. Asia (ordinance
  issued in 2002)

• 9 states in India have information access laws
• Central Freedom of Information Act, 2002 not
  operational

To be replaced by the Right to Information Bill
tabled in December 2004
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Pressure for RTI Regime

• Environmental concerns

activists and NGOs

• Consumer groups

• Peoples Movements against corruption

e.g Mazdoor Kisan Shakti Sangathan State of
Rajasthan
Bhrashtachar Virodhi Andolan State of
Maharashtra

• Judicial Activism

Supreme Court of India declared RTI - a part of
fundamental right to freedom of speech and
expression in at least 12 cases

• Pressure from international community

Donor-driven imperatives
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Ideal components of RTI Regime

• Constitutional protection for RTI as in South
  Africa

• A comprehensive legislation based on

Principle of maximum disclosure and minimum
exceptions
with

• a clear and simple application procedure

• minimal fees not exceeding the actual cost of
  providing information

• time limit for response to request (to give or
  not to give)

• an independent appeals mechanism (Information
  Commission)

• time limit for response to an appeal (to give or
  not to give)

• strictly enforced penalty regime against
  unreasonable denial

• maximum suo motu disclosure (especially schemes
  and projects)

• efficient records management and training of
  officials

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Scope of Right Information
Right

• to seek and obtain certified copies of records
  and documents

• to seek and obtain compiled information

• to seek and obtain samples of materials

• to inspect records and documents and take notes

• to seek information or copies of records
  maintained electronically or any other
  retrievable format

Information includes contents of records such
as
Files, notes, memos, maps, budgets, financial
statements, balance sheets, statistical data,
agendas, meeting minutes, ledgers, registers,
muster rolls, drawings, photographs, CDs,
models, emails, audio-visual tapes, scale models,
microfilm, microfiche, reports, diaries, file
notings, manuscripts etc.
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Exemptions in RTI laws (India)

• Records relating to sovereignty, integrity,
  security, safety, scientific or economic interest
  of the State and its relation to other states

• Cabinet papers, notes from meetings of Ministers
  and Secretaries

• Commercial and trade secrets that might affect
  competitiveness of firms (public and private)

• Information that may lead to commission of
  offence or harm public order

• Information that may harm investigation of crimes
  or the prosecution process or if disclosure is
  forbidden by a court

• Personal or private information of individuals
  that has no bearing on public interest

Good Practice
Partial Disclosure in the case of exempt records
Provide access to non-exempt portions of records
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Other exemptions
Excluded

• all kinds of Intelligence agencies

• police force

• paramilitary forces

Information will not be given if

• the request is vague

• it is already available in a published source

• if its collection is too cumbersome and will
  require enormous resources

Good Practice
Information that cannot be denied to a Member of
Parliament must not be denied to a requestor
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Improving Service Delivery
The Problem

• In Jawaja village, families living below the
  poverty line (BPL) always bought medicines from
  Primary and Community Health Care Centres.

• Lack of proper medical care frequent complaint

• Pregnant women paid Rs. 300-400 during child birth

The Intervention
RTI applications were filed for access to these
hospital records -

• number of patients treated
• types of medicines available
• audit report of the medical department etc.

Case Study Rajasthan
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Improving Service Delivery
Records revealed

• BPL families should have received 70 types of
  medicines free
• Pregnant women should have received free
  treatment
• Govt. paid salaries to the X-ray machine operator
  though the machine was out of order for more than
  2 years
• Many more irregularities came to the fore

Action taken
At a public hearing officials committed
themselves to providing free medicines to BPL
patients
Residents now acknowledge a marked improvement in
service delivery
Case Study Rajasthan
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The Public Distribution System (PDS) Enforcing
Accountability
The Problem

• Govt. provides subsidised ration to poor people

• However, ration dealers divert food to the black
  market for profit

• BPL cardholders then have to buy the same food
  grains in the regular shops at high rates

The Intervention

• Citizens groups in Delhi used RTI law to obtain
  copies of registers of stocks, sales and ration
  cards from the FCS Dept.
• They held Jan Sunwais (Public Hearing) to present
  this information before the public and the media
• Several public hearings were conducted to hold
  ration dealers and officials accountable

Case Study Delhi
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The Public Distribution System (PDS) Enforcing
Accountability

• Between 2003 and 2004, the Food Civil Supplies
  Dept. received over 100 applications for
  information on PDS

• In most cases applicants were unsatisfied with
  the Dept.s answers or just did not get requested
  records

• They sought help from the Public Grievance
  Commission (PGC), which is the Appellate
  Authority in Delhi. PGC ordered release of
  records

Action taken

• Subsequently, heavy penalties were slapped on
  corrupt ration shop owners and licenses were
  suspended

• Some officials who refused to give information
  were fined

• The Department has now been forced to initiate
  reforms and monitor the Public Distribution System

Case Study Delhi