IMPLEMENTING THE FREEDOM OF INFORMATION ACT: ARE WE EXPECTING TOO MUCH TOO SOON?

INTRODUCTION

Information flow between government and its citizens was deemed by Rt Hon Jack Straw (a UK MP) to not only empower the people but to promote a “vigorous and robust democracy”.  The Right to Information Act, 2019  except under certain exemptions is 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 should “transform the culture of Government from one of secrecy to one of openness”. In the UK for example, it led to the resignation by Michael Burgess as coroner for the late lady Diana’s inquest; it led to the disclosure of detailed breakdown of MPs travel expenses after an initial plan by ministers to exempt such disclosure; it led to World Development Movement (WDM) getting information relating to the biggest carbon dioxide polluters in the UK which before the Act would not have been readily available. There is the argument that most information in the public domain as a result of the work by the BBC and other media organisations would have remained a secret.

In 2011, I wrote an article on the expectations and benefits of having a Right to Information Act (RTIA) and advocated that we should all push for it to be passed since it will not come on a silver platter. Then I likened it to wives wanting husbands to agree to declare their income and not only having the right to know how every pesewa has been spent with details of all recipients but also their whereabouts after work, on weekends and who they have been with. If the politicians are husbands in my analogy, do you think without pressure the RTIA would have come that easily? Thank God after eight years the current President as promised has made it possible. May be it was more of a political decision than a willing one but all the same we have it. My concern now is the implementation.

Let me continue with my 2011 analogy. Wives now have right to payslips so husbands will stop collecting payslips from their employers; wives now have the right to install trackers in family vehicles so husbands stop using their cars to places their wives are likely to be interested in so use Uber (Great, since it will be a boom for Uber business); wives have the right to video call so husbands will deliberately leave known mobile phones at home switched off and locked with biometrics (finger print and iris) to avoid video calls. Hmmm! It is still possible for the wives to get some information not from willing husbands but at great cost and possible with court orders on employers and the Uber Company. The husbands upon pressure have agreed to the demands of the wives but how the wives will get the information will be the issue. Hence, one has the Right now but where is the Information.

I intend to raise some implementation concerns with respect to the RTIA using the UK as an example and attempt to give an opinion on what we need to do before we go-live.  

IMPLEMENTATION CONCERNS

The UK passed their Freedom of Information Act in 2000 but even with their resources and technology sophistication and e-government platforms, the Act only became operational in January 2005, this shows there was lot of structure they had to put in place.

We having passed ours in March 2019 say it will be operational in January 2020, well ours too starts in January so at least we have copied some. “Ayoooo!! we dey”. Either we have better systems and structures or we are just afraid “politically” having delayed in passing it to push it beyond some years for operational readiness. Let us look at some of the challenges the UK had as a guide to what we should expect.

Inadequate Information Systems

Putting in place the necessary information management system to facilitate the retrieval of information by the public bodies was a challenge leading invariably to delays in response and a legacy of backlog. For example; it took nine months for the Legal Services Commission to collate and respond to a request made to Cherie Booth QC and to Matrix Chambers. Also, a request for minutes of various meetings held at the Department of Health made on behalf of the parents of a child alleged to have suffered debilitating adverse reactions to the MMR triple-vaccination could not be given since some minutes were said to have been inexplicably misplaced or destroyed. “hmmm ayooo, UK mpo ne ooo”; an issue of willing but unable.

What is the state of our information systems, both digital and offline? Have we been trained in digital and manual filing of records? Is there any logical filing and retrieval system or procedure in place? Should we have information officers in government organisations solely responsible for information management and security? Are there standardised procedures or policies for information request? Should there be service level agreements (SLAs) for information request? What about linkages between information systems of different government organisations where information requested requires information collation from different systems? What about information in legacy information systems not being used? Have legacy systems been backed up in a format that is retrievable? Hmmmm Ayooo!

Complex Institutional Framework

In the UK, Public institutions, the Information Commissioner (ICO), the Information Tribunal all had a role to play and the relationship was a bit confusing when issues cropped up. In Ghana, we are likely to have the Data Protection Commissioner, the Information Commissioner and these days the National Security that seem to have spread it tentacles everywhere (eeeii, I dey beg oooo). You give out information that a ruling government feels it will make them unpopular and you will “smell pepper”. The Attorney General will therefore not be left out since most of the public servants in government organisations, to protect their jobs would wish to seek clarification, whether or not the information falls within exemptions. Some Public Servants are likely to hide their inefficiencies behind caution to cause undue delay.

The Constitution, which is the Supreme law of the land, already grants right to information. Article 21 (1)(f) of the 1992 Constitution states that “All persons shall have the right to information subject to such qualifications and laws as are necessary for a democratic society” (emphasis mine). The RTIA just gives effect to it by giving some fine details but without another deliberate pressure to actualise it, the issues that stopped the Supreme law of the land from letting us exercise that right, will still prevail under “subject to…” As it is said in our local dialect; Asante Twi, “papa no koraa antumi any3 na ne ba”.

I can guarantee, amongst the various institutions, a conflict of an interplay between right to the information and classification of the information under the caveat “subject to…” by way of non-disclosure in the interest of the public or national security (again just an example oooo) as necessary for a democratic society.  Will a redress system be put in place by January 2020 for the requester who technically has been refused information? Will the requester have to end up in court? Hmmmm Ayooo!

Funding

In the UK, in the formative period, the funding of the ICO was not sufficient for it to independently and effectively deliver its intended complaints resolution service. The Ministry of Justice set the funding levels of the ICO which affected its independence. As per findings of a Frontier Economics Review Report then, the UK government estimated an annual cost of about £35.5 million with 5% of requests accounting for 45% of the amount. The budget for the Central Information Office was over £300 million.

Can we say we can meet the necessary funding in this short period and most importantly, how are we going to fund it? As they say “May be the blind man who says he is going to throw a stone at you is already standing on one”. January 2020 we hear oo. Hmmm Ayooo!

Cost

Within a short period, the UK government had to review the fees under the Act in its bid to reduce costs; the government proposed changes to the charging regime to the extent that where cost of information retrieval exceeded cost limits, the public authority could refuse disclosure even if the requester was prepared to pay for it.

Likewise in Ghana, the right to the information did not say “free right”. Hence, will we adopt similar fashion where cost of information retrieval exceeded cost limits? I do foresee the cost to the requester being an issue once the RTIA becomes operational and this is my concern. Information if lucky will be available but where is your money

RECOMMENDATION

There would not be enough time to enumerate my opinion on the way forward but I will give some key recommendations excluding funding which is a no-brainer.

Website Publications

Local authorities and public bodies are to be mandated to proactively publish certain type of basic information such as budget, financials, activities and actual breakdown of cost in projects undertaken on their website such as “drop the chamber” (just another example oooo. I beg oooo). This should be a key performance indicator (KPI) in their assessment. This will minimise invoking the Act and its associated costs. As at writing this article I could not find the RTIA on the Parliament website or the Bill. Acts of 2018 and 2019 have not been updated. So who do I ask? Hmmm Ayooo!

Training and Public Awareness

The understanding of what the Act stands for should not be taken for granted because it has been hijacked by mostly the journalists who are seeking information hence pushed for it in the name of fighting corruption. The benefits are for all especially the strategic planning processes of small businesses. An SME that lost a government contract can for example request to see the winning documents of the big company like Vodafone that won the bid to improve upon their documentation and processes and the technology design they offered. There should be a lot of public awareness and roadshow if it is to help the citizens. How can we take advantage of it if we do not know what it means? This is a different type of the Act and we cannot afford the maxim of “ignorance of the law is no excuse”. There must be a deliberate, concerted, conscious effort to erase the ignorance else the envisage impact will not be felt.

This is change management and must be seen as such else there will be resistance, leading to fear and bottlenecks in providing information. Training for the public servant and those providing services of public nature is crucial. They should be made aware of their responsibilities, protection and understand the Act to be empowered. They should be aware of the rights of the requester and whatever limitations well explained. Without this how can they operationalize it?

Internal Policies and Service Level Agreements

Each government organisation should be able to, by way of policy document identify and categorise information that can ordinarily fall under the Act and can be published on their website, those that will require executive approval, board approval and those that may even require ministerial approval. Not to say it cannot be disclosed but right of information does not take away sound administrative practices which if not adhered in this part of our world can cost someone’s job or transfer to “Siberia”. Categorisation will also support an informed fee structure, from information that is free to those that have to be paid for and how much, based on the effort and cost of retrieval.

Service level agreements (SLAs) are to be well established in the policy since each organisation will have different levels and quality of information management systems as well as to mitigate any undesired bureaucracy in the administrative process.

Information Management Systems

Last but not the least, I am sure most public organisations will be having a chaotic information management systems. Putting in place a robust information management system will not come cheap. I am not talking about just digital but even a logical manual information management system such as a logical filing and archival system. The manpower needed to put together backlog of documents not in any logical form and bring to live information on legacy IT systems; is not a joke. Even photocopiers and paper to make copies can be an issue. May be there should be a budget line item for the Act in every public organisation’s annual budget for approval. Hmmm Ayooo!

CONCLUSION

The RTIA will be most beneficial to us as a people. Though we seem to have over concentrated on the Act as a tool to fight corruption (hope we do not get disappointed), it will also help in business development. It is going to be a new way of life for all of us and will face change resistance which we have already witnessed from Parliament. Change management methodologies need to be invoked hence for me we need to get it right the first time. Let us predict the challenges now, mitigate them, than doing “let us start and see how it goes then we solve the issues” tactic. We have the UK and especially the US to learn from to be operationally ready. January 2020?  Finally, I apologise in advance for using the words “National Security” and “Chamber” as examples. “Hmmmm! Ayooo!”