What does it mean?
How is it applied in Kenya’s ATI Act?
1. Maximum Disclosure
- Information should be disclosed to the widest extent possible, subject only to very few restrictions.
- Access to information should be applicable to all public bodies without exception. In some jurisdictions, ATI also applies to some private bodies.
- When deciding whether to release information to a person seeking access, decision makers should always proceed from a presumption in favour of disclosure in order to promote a ‘culture of openness’, based on the public’s right to know.
- An individual requesting access should not have to demonstrate any particular interest in the information or explain their reasons for the information request. This is a very important aspect of this principle.
- Kenya’s ATI law applies to citizens only, where a citizen is defined as a person who has Kenyan citizenship, or a private institution like a company that is controlled by one or more citizens.
- According to international best practice, everyone should benefit from the right to information, not only a country’s citizens.
2. Duty to Publish
- Under this principle, the public bodies are obliged to generate timely and quality information, and proactively disseminate it for broader access by citizens.
- This includes the regular publication and dissemination of key information and documents in a manner that is easily accessible to the public, even without requests.
- The benefit is that the more information routinely published, the less need for citizens will need to make request for information applications, therefore saving time and money.
- New technologies make it easier to publish and disseminate information, for example, a County Government’s website.
Section 5 of Kenya’s ATI Act provides for proactive disclosure and obliges public entities to facilitate access to information held by such entities, including:
(i) the particulars of its organization, functions and duties.
(ii) the powers and duties of its officers and employees.
(iii) the procedure followed in the decision-making process, including channels of supervision and accountability.
(iv) salary scales of its officers by grade.
(v) the norms set by it for the discharge of its functions.
(vi) guidelines used by the entity in its dealings with the public or with corporate bodies.
(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person.
This information was recently highlighted in the following Circular: CAJ CIRCULAR NO.1 OF 2019 ACCESS TO INFORMATION
3. Processes to Facilitate Access
- Requests for Information should be processed rapidly and fairly, and independent review of refusals should be available.
- This requires that simple, clear procedures be established to guide how public bodies deal with requests and how citizens can access information.
Part III of the ATI Act makes provision for processes to access information including:
Section 7. Designation of information access officer
Section 8. Application for access
Section 9. Processing of application
Section 10. Transfer of application
Section 11. Providing access to information
Section 12. Fees
Section 13. Correction of information
- Individuals should not be deterred from making requests for information by excessive costs.
- If costs are excessive, they will pose a barrier to access, and hence undermine the right.
- On the other hand, provision of information does have a cost implication on public bodies which has to be recouped.
- Preferably, costs should only be charged where there is a request for large amounts of documents, or for complex requests.
- Public entities can reduce the cost of public access by publishing information online, especially information that is routinely sought by the public.
Section 12 of the ATI Act requires that:
(1) No fee may be levied in relation to the submission of an application.
(2) A public entity or private body from which an application for access to information has been made may charge a prescribed fee for the provision of the information and the fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant.
(3) Subject to subsection (2), the Cabinet Secretary shall make regulations prescribing the fees payable for expenses incurred in providing information to an applicant.
5. Right of Appeal
- The right to appeal to an independent body to review decisions made by public authorities is reflected in most international standards.
- ATI legislation should include provision for an independent administrative body to take on responsibility for adequate implementation of the legislation.
- The appeals process should provide an avenue for enquiry and complaints procedure for the public to raise issues about public entity publication and access decisions.
- In Kenya, the Commission on Administrative Justice (CAJ) is the main enforcement and oversight body to undertake appeals where citizens are denied information.
The ATI Act establishes a two-tier review/appeal system:
1. An appeal may be made to the CAJ on a decision:
- refusing to grant access to information, or granting edited information, or deferring providing access to information.
- relating to fees imposed.
- purporting to grant access but not actually granting access, or granting information only to a specified person.
- refusing to correct, update or annotate information.
2. The second-tier appeal mechanism lies in the courts. A person not satisfied with the decision of the CAJ can appeal the decision in the High Court within 21 days.
6. Limited Scope of Exceptions
- There are instances where information can be legitimately and lawfully withheld from citizens. These Exceptions should be clear, well-founded in law, and narrowly defined and applied.
- Broad categories used internationally include:
o National Security
o National Economic Interests
o Diplomatic Relations
o Law Enforcement and Judicial Process
o Cabinet Documents
- Public interest overrides should apply when determining limitations.
- Although the limitations serve a crucial function, they are often used to undermine citizens’ rights to information in interpretation.
Section 6 (1) of the ATI Act contains limitations of the right to access information (in accordance with Article 24 of the Constitution which is about the limitation of rights and fundamental freedoms). These limitations relate to areas such as national security, due process of law, and invasion of privacy among others.
The ATI Act recognises the principle of public interest override and provides in Section 6 (4) that:
(4) Despite anything contained in subsections (1) and (2), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.
7. Promotion of Open Government
- Public bodies must actively promote open government.
- In most countries, there is deep rooted culture of secrecy within government based on long standing practices and attitudes.
- The right to information depends on changing this culture, as it is impossible to force public officials to be open, even with the best legislations.
- A range of promotional measures may be needed to address the culture of secrecy and ensure that the public is aware of the right to information.
- Long term success of the right to information depends on public officials understanding that openness is not just an obligation, but a fundamental human right.
Article 35 of the Constitution
Section 5 of the ATI Act
Section 3 of the ATI Act (object and purpose)
Section 4 of the ATI Act (right to Information)
8. Protection for Whistle-Blowers
- Individuals who release information on wrongdoing—known as ‘whistle blowers’—must be protected.
- Many ATI laws provide protection for liabilities for officials who in good faith and in public interest, disclose information pursuant to the ATI laws.
- The person must have reasonable belief in the veracity of the information they are disclosing.
- This includes protection against and legal, administrative or employment-related sanctions for releasing information on wrongdoing.
- This protection is important to change the culture of secrecy and uphold the principle of open government—public officials should not have to fear sanctions for disclosing information in the public interest.
Section 16 of the ATI Act makes provisions for the protection of a person making disclosure in public interest:
(1) A person shall not be penalised in relation to any employment, profession, voluntary work, contract, membership of an organisation, the holding of an office in any other way, as a result of having made … a disclosure of information … if the disclosure is of public interest.
(4) Any person who provides false information maliciously intended to injure another person commits an offence.
(5) Disclosure of information includes:
(a) violations of the law, including human rights violations
(b) mismanagement of funds
(c) conflict of interest
(e) abuse of public office
(f) dangers of public health, safety and the environment.