Mass-accessibility of information will effectuate a surge in citizen involvement in the affairs of state, politics, and governance, as it should be in a truly democratic republic
Following a global trend, Bangladesh enacted the Right to Information (RTI) Act in 2009. At the time of enactment, it was lauded as an effort to ascertain accountability and transparency of government.
However, marking 11 years since its inception, due to persistent reluctance displayed by authorities and bodies of the government in disclosing information, a question mark arises concerning whether this fundamental right as prescribed by Article 34 of the Constitution is truly being realised.
The preamble of the Act reflects the sentiment of the groups whose relentless effort culminated in the promulgation of this law. The preamble is as follows:
"Whereas freedom of thought, conscience and speech is recognized in the Constitution of the People's Republic of Bangladesh as one of the fundamental rights and right to information is an inalienable part of freedom of thought, conscience and speech; and Whereas all powers of the Republic belong to the people, and it is necessary to ensure right to information for the empowerment of the people; and Whereas if the right to information of the people is ensured, the transparency and accountability of all public, autonomous and statutory organizations and of other private institutions constituted or run by government or foreign financing shall increase, corruption of the same shall decrease and good governance of the same shall be established."
Nevertheless, as mentioned earlier, the implementation of this law has been more arduous than perhaps anticipated initially. With that in mind, we must analyse the provisions of this law. The first concerns we will address are- who can exercise this right to information, from whom the information can be accrued, and who/what are exempted from the ambit of this law?
Only citizens have the right to demand and receive access to information from public bodies. The scope of the RTI Act concerning bodies liable to provide information extends to the executive, legislative, and organisations that undertake public functions. Private organisations with government or foreign funding as well as NGOs, international organisations and other private bodies are also inclusive within these criteria.
The Act, however, excludes state security and intelligence agencies, unless the information sought pertains to corruption and violation of human rights in these institutions.
The definition of "information," as per the scope of this law, is broad. Any documentary material relating to the constitution, structure and official activities of any authority regardless of its physical form or characteristics (including machine-readable records) fall within this definition.
The access to information regime established by the RTI Act reigns supreme over any impediments laid down in other existing laws. There is a list of 20 exemptions which broadly protect some specific interests. Among them are state security, international relations, commercial secrets and intellectual property rights, tax and budget information, law enforcement, judicial activities, investigations, privacy, "secret information" of a person, life or physical safety of individuals; and others.
The RTI Act states that information may be refused only with "prior approval from Information Commission," as per section 7 of the Act.
All application for information must be made under section 8 of the Act. The aforementioned request must consist of certain information as listed: name, address of the person making the request, fax number/ email address, correct and clear description of the information sought for, other related information so that the location of the information sought for may be easily found out, description of the modes how the applicant wants to have the information- making inspection, having a copy, taking a note or any other approved method.
As per section 9 of the Act, the designated officer (RTI Designated Officer) shall provide the information to the applicant within 20 working days from the date of receiving the request. However, if more than one authority is involved, the information will be provided within 30 working days. In case the officer in charge fails to provide the information sought, he must inform the applicant, by writing, within 10 days.
These timelines and protocols are to be strictly enforced except for one instance: if a request made under section 8 and is relating to the life and death, arrest and release from jail of any person, the officer-in-charge is compelled to provide preliminary information thereof within 24 hours.
In case of failure to acquire information from the relevant authority, option to appeal remains. Initially, the appeal will go to the RTI Appellate Authority of the relevant institution. Failure to attain desired information from the Appellate Authority will result in applying to the Information Commission.
Thereafter, it is within the discretion of the Information Commission to determine whether the sought after information will be given or not. However, in case of failure to acquire information using these means, one may exercise their right to information by filing a writ under Article 102 of the Constitution.
Now that all means and mechanisms of exercising the right to information have been discussed, it is imperative to assess the reality of the implementation of this law.
According to a survey conducted in 2019, 59 percent of appellants did not get a response from designated officers in the first phase. Among them, 55 percent won their appeals in the second phase, while 37 percent received no response from the appellate authority.
Of those who were rejected in the second phase, 60 percent were rejected due to procedural reasons, while 27 percent were rejected on the ground of seeking confidential information, which is an exception as mentioned earlier.
Total 1,284 complaints were filed with the Information Commission from 2009-2019. The commission took an average of 73 days to deliver each verdict. Around 17 percent of the complainants did not get the information they had requested despite obtaining favourable verdict from the commission.
Although the enactment of this law was a positive step towards ascertaining accountability and enhancing the transparency of government, we are still trailing significantly behind in terms of establishing the absolute right of citizens in seeking information without the hindrance of any bureaucratic backlog.
If conclusive measures are taken to hasten the process, it is certain that the mass-accessibility of information will not only ensure good governance, but will also effectuate a surge in citizen involvement in the affairs of state, politics, and governance, as it should be in a truly democratic republic.
Wasif Jamal Khan, President, Bangladesh Forum for Legal and Humanitarian Affairs (BFLHA)