NA Legislative Committee removes restrictive clauses on RTI Bill
The bill, however, has to pass the National Assembly where each amendment and section will be voted on
The National Assembly’s Legislative Committee, after several rounds of consultations and a thorough review of the Right to Information (RTI) bill, has removed most, if not all, restrictive clauses that had initially hampered the RTI bill. The Committee has also proposed new and progressive clauses in the bill.
The Committee has removed some crippling clauses under which virtually all official information could be denied or kept out. It has prevented a conflict of interest by making the competent court the appellate authority and not the Ministry of Information and Communications (MoIC), but it gives space to the government to form an appellate tribunal before going to court.
It has also removed the need to give reasons to ask for information and removed punitive clauses for use of information sought through RTI. The amendments have also removed indefinite time extensions given to agencies to give information and has introduced penalties for not complying with the key aspects of the Act.
The RTI bill along with the Legislative Committee’s amendments was introduced for a third reading on Friday, but the National Assembly could only finish discussing until Section 8 out of the more than 74 Sections in total. (See NA Discussion on RTI on page 3)
Removing the unnecessary but crippling exemption clauses
The Committee, while protecting basic exempt information that deals with security, sovereignty, privacy, whistleblowers, etc., had removed some restrictive clauses that were virtual ‘RTI killers’ in their broad scope and vagueness.
Under the Chapter “Limited Conditions for Denial,” the three cases under which information can be denied have been removed.
The clauses, which have been deleted, say that a public authority may deny or limit a request for information if compliance with the request would substantially divert resources, affect the lawful function of the official and head of the public authority personally attested to this fact.
It was felt that the clause, given its broad scope, could be used as an excuse by officials and agencies to cripple the implementation of the RTI Act, as all information requests could be treated as a diversion from the norm.
Another positive step is that under Chapter 5 called, ‘Exempt Official Information,’ the earlier exemption which said, “A public authority may refuse to disclose the requested information if disclosure of the information would undermine the free and frank provision of advice within the government,” has been removed.
The earlier killer clause on the bill, at its inception under this chapter was Section 44 (4) which says, “A public authority may refuse to disclose the requested information if, the disclosure of information is received in regard to the Affairs of the State or in discharge of official duties.” This would have exempted all official information from being shared.
This has been modified and now says, “This disclosure of secret information is received in regards to the Affairs of the State or secret information obtained while discharging the official duties.” Legislative Committee Chairman, Lekey Dorji, said that ‘secret information’ could be defined as one in other clauses, like those dealing with sovereignty, security, etc.
A new clause has also been added which says, “The public service provider shall not invoke the denials and exemption clauses contained in this Act to aid, conceal criminal or corrupt activities.”
MoIC, no longer the appellate authority
Another major grouse with the earlier draft of RTI was that the MoIC was made the appellate body of appeal if agencies denied information. It was felt that this would be a major conflict of interest, especially if MoIC officials themselves denied information.
The Legislative Committee, in its amendment, has removed the MoIC as the appellate body and now a petition can be filed to a court of competent jurisdiction.
The Committee, at the same time, has also given the option of forming a Tribunal, as and when the need arises, to handle cases related to Right to Information. This would mean an appellate could get justice in the Tribunal, itself, before having to go to court in case a Tribunal is formed.
No more reasons required
The Committee has also deleted Sections 22, 23 and 24 of the earlier draft which allowed and agency to ask citizens reasons for asking the information under, asking them to use it exclusively only for that purpose, and then penalizing them for ‘misuse of the information’ respectively.
These clauses were earlier seen as a deterrent against the use of RTI by ordinary citizens.
No more long time extensions
Under the earlier draft, once an RTI application was filed, the information could be provided under 14 days and incase of extraordinary reasons it can be extended to 30 days and a further 90 days.
The Committee’s amendments saw that information has to be provided within 10 days, with extensions of 30 days and 60 days only in exceptional circumstances.
The earlier draft had said that information should be provided within two days when it was necessary to safeguard the life or liberty of a person. The Committee’s amendment has changed that to 24 hours.
Penalties for non-compliance
One of the most important and positive aspects of the RTI bill is Section 12 under which 15 categories of information of an agency like rules, policies, procedures, budget, etc., have to be made pro-actively public.
Agencies have four months to come up with its first operational statement and a full two years to achieve full compliance of Section 12.
However, the only problem was that there were no penalties on agencies for not complying with Section 12.
There are now two new sections which say that the head of the public service provider, individually or jointly, shall be liable to a fine, equivalent to a day’s minimum wage, for each day of delay in conforming to provisions of Section 12 of the Act and also for not updating information required under the same section.
During the public consultations, some civil servants were horrified to learn that they would be held liable for petty misdemeanor in court if they were found to have denied information within the given timeframe.
Taking this into consideration, the Committee has said that in the first instance of a court finding a public service provider, information officer or head of public service provider not providing the requested information or providing incorrect and delayed information, that the offender is liable to pay compensation equivalent to 270 days of minimum wage to the aggrieved party. It is only in the second instance that it becomes a petty misdemeanor and a fine of 270 days of minimum wage has to be paid also.
However, if it is found that the public service provider, information officer, head of public service provider refuses, without any reasonable ground, to give information or willfully obstructs access to information, he or she shall be guilty of the offence of withholding information unlawfully which would be a misdemeanor and in addition to that the court would award a 270 days minimum wage compensation.
The Committee has also amended Section 18, whereby a request for information will only have to given in writing with no prescribed or standard format.
The Legislative Committee reviewed the RTI bill after it was introduced in the first session of the Parliament after the 2013 elections. The National Assembly referred the matter to the Committee as it felt the need for more consultations and research.
Tenzing Lamsang / Thimphu