THE FREEDOM OF INFORMATION ACT : WHAT CAN WE LOOK FORWARD TO?

INTRODUCTION

It is generally acknowledged that information flow between government and its citizens does not only empower the people but promotes a “vigorous and robust democracy”. A Freedom of Information Act (FOIA) except under certain exemptions is therefore intended to give the public the “right to know” the type of information held by public bodies. It is an attempt for “greater transparency, accountability and engagement” in government business and can create a culture of openness.

Passing of the Act in Ghana is in my opinion a necessary but not sufficient condition to achieving the envisaged and most anticipated impact on our democracy. Having the Act is not an end itself but a good means to a desired goal. There are a lot of costly implementation issues by way of structures, systems, change of mental models that have to be put in place to operationalise the Act. The UK for example passed their FOIA into law in 2000 but came into force in 2005. I intend to highlight a few benefits and challenges that the Act is likely to bring.

IMPACT/BENEFIT OF THE ACT

• Improved Private Sector /Government Business

For private businesses especially SMEs, greater access to information or commercial intelligence held by government will help in their strategic planning processes to improve their relationship with government in areas such as:

ü  Winning government contracts (contract tendering and effective bid writing). An SME business should be able to request for bidding documents of other large companies that have won government contracts to learn what needs to be done. Once the contract is from government and going to be funded with tax payers’ money the completed bidding documents used to win a contract should be public property. This brings transparency since the decision making process can be subject to public scrutiny leading to reduction of corrupt practices.

ü  Competitor pricing, product development. Businesses should be able to request for quotes and plans made by other competitors for government projects to improve upon their internal capacity building and competitiveness. This may eventually lead to cost reduction by government and improved services.

• Public Accountability Demands by Organisations

A lot of accountability can be brought to bear by organisations (NGOs especially) in the operations of public bodies thereby creating awareness amongst members of the public. A few examples with respect to the UK are: 

The World Development Movement (WDM)

The WDM was able to get information relating to the biggest carbon dioxide polluters in the UK which before the Act would not have been readily available.

For the first time the amount of EU farming subsidy received by British farmers which hitherto was a secret was made available through a request by WDM. It revealed that the Queen and Prince Charles had been beneficiaries.

Bail for Immigration Detainees (BID)

The above organisation by obtaining information relating to detention of children under the Immigration Act, was able to scrutinise Home Office decisions and challenged the detention of children..

• Public Accountability Requests by Individuals

Individuals should also be able to bring pressure to bear on public bodies or quasi-public bodies where the government has some stake (SSNIT, some banks etc). I should be able to request for the salary structure or benefits of the executives of the National Investment Bank. Once it is the tax payers’ money that is being invested in the organisation or project, information should be provided when requested for unless the likely harm of disclosure exceeds that of the public interest or exempted by law.

In the UK, individuals have influenced the UK society by making various requests that led to the following:

Þ    Resignation by Michael Burgess as coroner for the late lady Diana’s inquest

Þ    Disclosure of detailed breakdown of MPs travel expenses after an initial plan by ministers to exempt such disclosure. The MPs resisted but the law prevailed.

ENVISAGED CHALLENGES

• Inadequate Information System/Delays

There will be the need to put in place the necessary information management system to facilitate the retrieval of information by the public bodies to forestall delays in responses and a legacy of backlog. The e-Government infrastructure must be functional with most information being readily available on government websites or portals. How do we transcribe our existing manual data into digital format for easy retrieval? Or we may need to employ more people just to take care of the requests under the law. For example in the UK it took nine months for the Legal Services Commission to respond to a request made to Cherie Booth QC and to Matrix Chambers.

• Complex Institutional Framework

The roles and responsibilities, rights and obligations of various players can be quite confusing when issues crop up. In the UK, Public institutions, the Information Commissioner (ICO), the Information Tribunal all have a role to play and the relationship has been a bit confusing. We may need to simplify or clearly explain the institutional framework.

• Cost/Funding

There needs to be adequate funding to be able to effectively deliver the intended complaints resolution service. The requests are also likely to increase the operational costs of public bodies in the short term since they have to put systems in place to satisfy the law. In the long run however this may be offset by the envisaged reduction of corruption and prudent spending thereby reducing waste and making funds available.

• Fee System

This is one area that can run contrary to the spirit of the Act. Applicants may be required to pay fees to cover the cost of retrieval of information above certain cost thresholds and it can be one area where public bodies may deter individuals by charging ridiculous fees. Yes the information can be made available but at a fee that is a deterrent to seeking the information.   

• Exemptions

This is another area that can cripple the spirit of the Act. To avoid disclosure, the wording of exemptions can be vaguely, broadly and ambiguously done such that government bodies can hide under a form of exemption not to make certain information available. We should remember that the FOIA will be a check on government business including parliamentarians and as human institutions if it is the same parliamentarians who have to pass this law then they may naturally want to cover so many exemptions. Who knows I might do the same. The law can therefore be passed but will be a “lame duck”.  The Act may however give time limitations as to when even exempted information can be released and drafters can make this period ridiculously long ( 20 to 30 years) that it might no more be useful or relevant. Also the availability of the information after the exemption period will to a large extent depend on good and effective records management and in Ghana, “you mo know”. You can therefore make a request for information but if it cannot be found you get nothing.

 

WAY FORWARD

Local authorities and public bodies should proactively publish information on their websites to minimise the number of requests under the Act to save time and reduce cost.

There should be different charging structures for different categories of requesters (individuals, students, journalists, researchers, academicians, SMEs, NGOs etc) with the possibility of a fee waiver as long as the information can be justified to be in the interest of the public as done in the USA.

It should be a legal requirement for public organisations to put in place effective records management systems as custodians of public information. Government must again fund this system.

CONCLUSION

Aside the envisaged concerns of delays in responses, a lot of public sector information which hitherto - prior to the Act- would not have been available will be in the domain of the public thereby creating greater openness and accountability in government.

Government through its various bodies including Parliament cannot use the tax payers’ money and refuse to account for it. Nobody is saying do not spend but let us all know what you spend on, how much and why. Let us know how you go about the business for which our taxes are being used for us to decide whether it has been worth it. Of course this is not too much to ask unless there is something to hide

I however do concede that it is a new mental model and a new way of life which needs the political will and parliamentarians as well as government run by human beings would want to be careful they do not pass something that will “boomerang” in their face. Let us demand the FOIA but let us also empathise with those somehow giving away their freedom in the process. It is not easy but let us keep pushing and mounting pressure on government for the Act to be passed if we truly believe in deepening our democracy.

Imagine if husbands are asked to pass a law that allows wives to request for information on what their husbands have used their salary for and where they have been after work as well as gifts they have purchased for their female friends with receipts. What exemptions would husbands want to incorporate? and how fast would husbands want to pass it? Again wives could say if husbands have nothing to hide this should not be an issue but how will husbands take this?

It is power in the hands of the people and away from the politicians. If we do not fight they will not give it on a silver platter.