Islamabad — The Khyber Pakhtunkhwa (KP) government is about to undo its own positive moves to bring transparency in governance.
The government’s Right to Information (Amendment) Bill 2018 was put on the provincial assembly’s legislative agenda for Tuesday*, according to information available on the assembly website. The bill aims to significantly change the Right to Information (RTI) law the same government had passed in 2013.
The amendments, approved by the provincial cabinet in January, appear likely to strip the RTI law of its major strengths. These amendments, if passed by the assembly, will force citizens to prove the public interest of their requests and increase the ability of government officials to deny access to information.
The amendments will have a negative effect on the entire RTI regime in Pakistan, said Natalia Tariq, a program manager at Open Society Foundation Pakistan who has been involved with RTI advocacy in the country.
“On one hand, you had this law which was one of the most progressive laws, not only in the country but the entire world,” Ms. Tariq said. “Now for the exact same law, we are backing out.”
She said it was sad that the KP government first operationalised and implemented the law and has now brought forth amendments to kill the spirit of the law.
Malik Masood, a program manager at the Centre for Governance and Public Accountability (CGPA) which works for effective RTI implementation, said it is difficult to say anything about the government’s intention for suggesting regressive amendments to the law.
However, Mr. Masood said the government might have been irked by the role of the RTI law in recent revelations about the use of government helicopters, alleged corruption in the Billion Tree Tsunami project, and the use of development funds in Nowshera.
“If restrictions are imposed on the use of RTI, then I think details about how and where public money is being spent will not surface,” he said, while speaking at a CGPA press conference in Peshawar to oppose the amendments.
Here’s a list of some of the changes suggested in the amendments bill by the KP government:
1 – Prior Approval
Under the 2013 RTI law, each public body is ordered to designate a Public Information Officer (PIO) to deal with information requests. The KP RTI commission and access to information activists have long demanded the government to strengthen the PIO’s role to ensure efficient implementation of the citizens’ right. However, the amendment bill suggests adding a check on the PIO’s decision-making power:
“…and the public body shall act in aid to the Public Information Officer to ensure in time supply of information under this Act:
Provided that the Public Information Officer shall obtain prior approval of the incharge of the public body regarding the supply of information.”
In other words, if the secretary or the head of a government department forbids the subordinate PIO from supplying the information, the PIO will have to deny the information request.
2 – ‘Dear citizen, why do you even want information?’
One of the strong points of the KP RTI law was that it did not require information requesters to reveal why they wanted the information. It was the people’s right to access the public records and they could simply get it. No reasons needed.
In fact, the 2013 law categorically mentioned in its Section 7, clause (5) that “In no case shall a requester be required to provide reasons for his request.”
Transparency activists around the world believe this lack of reason disclosure is an empowering step because it prevents government officials from discriminating against requests on the basis of the reasons.
Ms. Tariq said the most beautiful thing about the law was that it wouldn’t ask the citizen for the reasons for a request.
“There was an assumption that the citizen actually has the right to ask this information without having to provide a reason for his query,” she said. “In this amendment, they are trying to change that by asking that you have to provide reasons for asking. I think this is the most regressive part of the amendment.”
The KP government’s amendment bill has suggested the following change to Section 7, section (5) of the 2013 law:
“A requester while applying for information shall provide cogent and sufficient reasons with his request for information under sub-section (1) supporting his request which should prominently show that the information requested for is one of public importance.”
This amendment should be read along with two new definitions proposed in the law:
“(f-1) “malafide” means bad faith or a dishonest intention with the object to mislead someone and includes the intention of malicious use of information obtained under the Act.”
“(i-1) “public importance” means and includes anything which directly concerns the public at large or which is in any way of importance to the public”
These amendments will give government officials to subjectively judge the intentions of the requesters.
Mr. Masood, during the CGPA press conference, said all government information is evidently in the public interest and this amendment begs the question whether the government is working on issues of public importance or not. He also said it is unclear how the PIOs will determine if information is being requested with malafide intentions.
3 – Internal communication off limits
This is perhaps the most damaging amendment to the RTI law and goes against a 2015 directive by the Information Commission.
The 2013 law’s section 18 only allowed public bodies to refuse information about policy discussions if the disclosure could harm the deliberative process. But now, the proposed amendment broadens the scope of section 18:
“18-A. Internal Communication,— A public body may refuse a request for information which pertains to the internal communication of such public body such as note sheets of a case file containing personal views of an officer, routine orders of the competent authority of a public body relating to assignment of a work or distribution of business etc. if such an information is not of public importance or otherwise serves a public purpose.”
This section is ripe for exploitation. Mohammad Anwar, the executive director for CGPA, was quoted by Dawn as saying that a government official could deny an information request by simply claiming that the requested document has personal views.
Ms. Tariq agreed with Mr. Anwar’s assessment about the amendment to exempt internal communication.
“They can deny any information now saying that ‘oh, this was internal communication’,” she said.
Mr. Masood said if some bureaucrats or government officers are working in an official capacity then their personal views are really their professional views.
“What are these views that a government official writes (on a case file), which cannot be publicly disclosed,” he said rhetorically, during the CGPA press conference in Peshawar.
The only way requesters will be able to access internal communication is if they prove the public importance of the communication, according to the amendment. This could signal a lengthy complaints process where the requester will have to appeal to the information commission and potentially have multiple back-and-forth hearings to prove the public interest.
You can read the complete draft of the amendments bill, as it appears on the KP assembly website, below. You can read it along with the 2013 KP RTI Act available in our resources section.
4 – Deadline for appeals
The 2013 RTI law stated anyone who believed their request was not dealt in accordance with the law could lodge a complaint with the KP Information Commission. The amendment bill has put a 30-day time limit, which will start right after the 10-day time period for information provision by a government department expires.
The government has suggested the word “appeal” to be replaced by the word “complaint” in the law.
5 – Appointment of New Commissioners
The three information commissioners are tasked with carrying out the functions of the KP Information Commission, which is the statutory appellate body under the law and also ensures the law’s implementation.
The only positive amendment suggested in the RTI Act is that the commission will notify the government 120 days before the three-year term of the information commissioners ends so the government can appoint new commissioners. This might help prevent a situation such as the one that persists in Punjab where the government has failed to appoint new information commissioners.
What could have been?
The KP RTI Commission and activists who have lobbied for effective RTI implementation had previously suggested to the government that it should strengthen the role of PIOs by giving them more powers, bring the High Court under the ambit of the RTI law, and give the commission the powers to formulate its own rules of business to make it independent.
However, the current amendment bill does not contain any of these suggestions.
Mr. Masood said amendments that are developed through public feedback are welcome but the government has “100% ignored” the commission’s suggestions for amendments, presented a year-and-a-half ago, which were based on public discussion.
Sources close to the amendment bill development said the KP information department and the provincial law department had taken the lead in preparing the bill and forced the KP RTI Commission to toe their line. Earlier, government departments had remained tight-lipped about sharing details about the proposed amendments and the commission had also refused to share the draft amendments.
*Correction: A previous version of this article stated that the KP government had introduced the bill to the provincial assembly. This is incorrect. The bill was put on the assembly’s list of current business on Tuesday but it has not yet been introduced to the assembly for debate and voting. The article has been updated for accuracy.