Challenges of making the Right to Information Act effective

Right to information is well-recognised as a significant facet of fundamental freedom of expression. More significantly, accessibility to information on government entities and their functioning facilitates informed decision-making and meaningful public debate. The transparency established through free flow of information is also key to building credibility for public institutions. Based on such premises, the UN Special Rapporteur on Freedom of Expression reiterated that the right to access the information held by public authorities is a fundamental human right that should be brought into effect through comprehensive national legislation. 

The Right to Information Act 2009 (RTI Act) of Bangladesh has been promulgated in recognition of people's right to information as an inalienable part of the constitutional right to freedom of thought, conscience and speech. Appreciated as a significant step towards ensuring public participation and transparency at the time of its enactment, the effectiveness of the RTI Act has been questioned over the subsequent decade. Studies have pointed to shortcomings in terms of the legal framework as well as extra-legal factors such as the culture of secrecy, fear and red-tapism as reasons behind the slow progress in its implementation.

In order to evaluate whether the RTI Act fulfils international standards, its provisions may be compared with the principles on Freedom of Information legislation endorsed by the 2000 report of the UN Special Rapporteur on Freedom of Expression. One of the foremost principles is that of maximum disclosure. This principle implies a presumption that all information held by the public authorities is subject to disclosure and that this presumption may be overcome in limited cases. Furthermore, it puts the onus on the relevant authorities of justifying why a request for information has been denied. The principles also state that a refusal to provide information must meet a three-part test, i.e. the information must be for a legitimate aim provided in law, the disclosure must pose a substantial harm to that aim and the harm must be greater than the public interest in favour of disclosure.

Section 7 of the RTI Act contains a list of 20 circumstances in which disclosure is not mandatory. Although the section is accompanied by a proviso that prior approval shall be obtained from the Information Commission for refusing information under this section. Studies conducted by the World Bank shows that about 27 percent of information falling under the section was refused. Therefore, the compliance of the RTI framework with the principle of maximum disclosure is dubious. Another significant principle entails that "disclosure takes precedence", which requires that other pieces of legislation must be interpreted in light of the obligation to disclose information. The interplay of RTI Act 2009 and other laws, particularly the Official Secrets Act 1923, Digital Security Act 2018 etc. are crucial in determining its effective implementation.

Section 3 of the RTI Act 2009 states that in case of any impediments in other laws, they shall be superseded by the RTI Act. Therefore, some existing laws which uphold state secrets shall be overridden or narrowly applied in order to protect the right to information.

For example, under section 6(2) of the Official Secrets Act 1923, if one allows any other person to possess official documents issued for his use alone, for any purpose which is prejudicial to the safety of the State, they will be committing an offence. Section 123 of the Evidence Act 1872 prevents any "unpublished official records" from being presented as evidence without the permission of the department head. In the cases of conflict with these laws, the RTI Act 2009 shall prevail. This is a positive aspect of the law; however, the subsequent reference to the Official Secrets Act 1923 in the Digital Security Act has been criticised for undermining the spirit of the RTI Act.

Section 32 of the Digital Security Act states that any person who commits or aids and abets any offence under the Official Secrets Act 1923 by digital means shall be punished with imprisonment up to 14 years and/or fine up to Tk 25 lakh. Whereas the relevance of such outdated, colonial laws is in itself questionable, the Digital Security Act adds further validity to the existing culture of secrecy by upholding the 1923 Act. Section 3 of the Digital Security Act 2018 states that the Act supersedes conflicting provisions in other laws except in cases of right to information (in which case, the RTI Act shall prevail). However, several other provisions of the Digital Security Act pose a threat to the proper implementation of the RTI Act.

For example, the sections defining offences of publishing "offensive, false or fear inducing information", collecting or using identity information without permission etc. as well as provisions on defamation and blasphemy have been framed in an extremely broad and vague manner. Furthermore, section 43 allows the law enforcement to arrest, without warrant, any person if they have reason to believe that an offence has been committed or there is a possibility that an offence will be committed. These provisions are not only prone to misuse, they also have a chilling effect on free speech and practically restrict the implementation of the RTI Act.

Moreover, section 31 of the RTI Act provides protection to acts of the authority undertaken in "good faith". The concept of good faith refers to acts done with due care and attention. The elements of due care and attention can only be measured by the subjective satisfaction of the authority. Such subjective satisfaction of the authority based on good faith clause may lead to abusive and discriminatory practices. The inclusion of the good faith clause in a law enacted with the very purpose of holding public authorities accountable is inherently paradoxical.

Apart from the shortcomings of the RTI Act, there exist certain practical challenges in its implementation such as the role adopted by the Information Commissions (IC) and Chief Information Commissions (CIC). Many of the IC and CIC selected in the past have been retired public servants who are reluctant to shift from their existing roles in preserving the culture of secrecy. As a result, they have not been able to foster a pro-citizen climate in the RTI regime. The relatively complex procedure of requesting information and excessive bureaucracy also largely diminishes the efforts of concerned applicants under the Act.

The RTI Survey 2019 has also shown that the concerned authorities are hesitant to impose penalty on the Designated Officer(s). According to the survey, no action was taken in 48 percent cases of non-compliance with the RTI Act.

To sum up, it can be stated that the RTI Act poses both challenges and opportunities for the establishment of transparency and accountability within public bodies. The legal framework needs to be reformed to make it compliant with the international standards. In addressing the extra-legal factors, concerted efforts from different walks of life is necessary. Civil Societies, media and the judiciary can also play an active role in this regard by popularising the RTI Act and upholding the spirit of access to information.

Tahseen Lubaba is a member of the Law Desk at The Daily Star.