Access to public information still a mirage - Part 1

Dar es Salaam. When government introduced the Access to Information Bill 2017, and after it was debated and passed by Parliament and later signed into law by President John Magufuli, there was some hope that it could be the solution to the longtime demand by many, for the seamless flow of information, especially from public officials. That, sadly, has not been the case.

Almost a year since the law was promulgated, things have not changed for the better as anticipated by many people, as attested to by a recent report commissioned by the Media Council of Tanzania (MCT).

Conducted by Benedict Alex Ishabakaki, the study found out that it was not the absence of the law, which jeopardised people’s access to information, but rather, the conduct of the information holders.

In his findings, Mr Ishabakaki noted that though the law clearly outlines how information should be shared, the problem still persists. The report presents the level and extent to which the Act facilitates the access and free flow of information, its possible deficiencies and impact on access to information. It also looks at regulations’ conformity to international and regional standards, as well as Article 18 of the Constitution.

A separate report commissioned by Misa Tanzania cements the public officials’ behaviour as a major impediment to access to information. The report, which will form a second part on this analysis, is drawn from a research conducted in seven regional commissioners’ and council offices. A questionnaire was sent to these offices asking for information on a myriad issues, but most of them either did not respond timely or did not respond at all.

Strong points

The regulations, which were made under section 20 of the Access to Information Act, No.6 of 2016, contain a number of strong points, which empower information seekers and oblige the information holder to cooperate.

Generally, the regulations have cured some of the omissions or gaps manifested in the parent Act, according to Mr Ishabakaki. The regulations have given flesh to some of the skeletal provisions of the ATI by expanding the scope of the information to be accessed, obligations of the information holder as well as free flow of information.

“The regulations may be considered a milestone achievement compared to the parent Act; this is so because the regulations have addressed some of the omissions or gaps contained in the Access to Information Act,” reads part of the report.

As noted earlier, to a large extent, the regulations put in place clear mechanism, which facilitate access to and free flow of information. They contain provisions, which ensure the free flow of information and unhindered access to information.

Under these regulations, it is now illegal for information holders to refuse to give information dully asked. Information holders are obliged to establish, maintain and update regularly a widely accessible holder and user-friendly publication scheme, which may contain information it possesses, nature of its core functions, activities and operations.

This intends to ensure unhindered access to information under the possession of the information holder. To make sure that the information holder does not give information at his leisure, section 5(1) of the regulations impose an obligation on the information holder to publish certain key information as soon as they receive or generate them even though there is no request for such information in place.

Section 4(1) of the regulations sets a minimum content of the publication scheme while section 4(2) requires a maintenance of hard and soft copies of the information at the premises of the information holder or any other reasonable public places.

“This is meant to ensure that the user may be able to access the information in whatever form they want,” noted Mr Ishabakaki.

Other guidelines

The regulations also put in place conditions with regard to the kind of key information which the information holder is under obligation to publish. These include legislation, memorandum or charter for its establishment, its existing policy, procedure and rules, its budgets, the financial account, contracts and annexes that have been entered with third parties to list but a few.

“This is a commendable approach, which will not only ensure unhindered access to the vital information but also facilitate free access to information to the public,” says the report.

In general, the regulations have expanded the scope of the information, which the information holder is under duty to publish.

The regulations also prohibit an information holder or officer to demand a person who is requesting access to a certain information to provide reasons for such request. This is a remarkable milestone and cures the gap contained in the ATI, which was silent on this aspect and thus creates an avenue for abuse by the information holder.

Information holders will also have no excuse when it comes to the rejection of disclosure of information on grounds that the requested information is exempt. This is guaranteed in the regulations.

Moreover, the regulations impose additional obligation to the information holder to give notice to the person requesting access to information, in case partial access is granted, informing him that only part of information is provided after severance of the exempt part, reason for such decision, name and designation of the person giving decision and right to apply for review regarding non-disclosure of part of the information.

But, as we might see in the next article, though these regulations provide a clearcut atmosphere for access to information, conduct by public officials is now a new impediment to access to information. To be continued next week…