Information Disclosure Policy: A Toolkit for Pacific Governments (July 2006)
### EXPLANATORY NOTES Disclosing information upon request Forms of government information The Model IDP includes a broad definition of information - rather than using the narrower terms "documents" and "records". In an era where new technologies constantly create new forms of information, this will ensure the definition is broad enough to remain contemporary. The definition of information also covers samples (eg. of materials used to construct buildings/roads/etc) and allows inspection of public works. This approach draws on the definition of information in the new Indian right to information law. That law has recognised that access to such information can be extremely useful in ensuring that public works are properly undertaken. New Zealand's information law even permits access to unrecorded information that is known to the officials in a department. This reduces the temptation of some officials to try and circumvent the law by not recording things that should be written down. Consideration could also be given to extending the definition to cover information that the government should have collected under an existing law, but has not yet received. For example, the public should be able to access an environmental report which should have been submitted by a mining company, even if it has not yet been provided by the company and the relevant Ministry has not followed up the failure to submit the report. Key questions: Are there any other types of information which should be mentioned in the Policy? Should the Policy include access to information which should have been collected by an organisation, even if it has not yet been collected? Request to access information The Model IDP is designed to make it as simple as possible for a person to request information. Imposing too many procedural requirements could otherwise act as a deterrent to applications. For this reason, no application form is required - a letter or phone call is sufficient. As long as the requestor provides details which allow information to be identified and located, that should be enough. Applications should be allowed in any local language to make it easier for people to submit requests. Translation can be organised by the government. The Model IDP allows an application to be made by letter, fax, email or telephone. Again, this approach has been adopted to make it as easy as possible for a person to submit a request. Where telephone requests are made - an approach that that is permitted in Jamaica, another island country - they need to be written down by the official so there is a record of the application. The Model IDP makes it clear that officials cannot require requestors to state a reason for their request. There can be no room for officials to deny requests simply because they are not satisfied with the requestor's reasons for wanting the information. This could end up personalising or politicising the application process. The official receiving the request needs to provide a written receipt on the spot if it is submitted in person, or no later than 5 days from received it, so that the requester has evidence of the date the application was submitted. Key questions: Are the request procedures in the Model IDP practical considering the local context? Are any additions or amendments necessary to ensure people can easily make requests? Is the approach appropriate for people in rural area, women and illiterate people? Processing requests The Model IDP establishes a system which allows any official to receive an information request and process it, but in addition identifies Departmental Information Officers (DIOs) who will ideally process the majority of requests. The use of DIOs means that capable officials who have been targeted for training on the Policy can handle the bulk of requests - efficiently and properly. However, in Pacific counties where most populations live outside the capital cities and away from the head offices where DIOs will likely be appointed, it is necessary that members of the public can make applications for information to local government offices and be confident that they will be processed in a timely fashion. The option for officials to consult with DIOs or another senior official should ensure that the Policy is properly applied. To require DIOs in headquarters to process all applications would be impractical. This approach also fits in with the push towards decentralisation that many Pacific countries are pursuing. Alternatively, governments may consider a "single desk" system whereby all applications are forwarded to a central unit to be handled by dedicated processing officials. This has the advantage of ensuring that all officials handling applications are capable of applying the Policy correctly. However, it is likely to result in huge time delays and reduces the likelihood that a culture of openness will be successfully disseminated to other government officials. Key questions: Are the processing procedures in the Model IDP practical considering the local context, in particular the fact that requests will in practice need to be handled at local offices to promote timely processing? Are any additions/amendments necessary to ensure officials can easily process requests? Fees Best practice requires that no fees should be imposed for accessing information, particularly government information, as costs are already covered by public taxes. Imposing an application fee could constrain the poorer sections of the community from making an application. In countries like Mexico and the United Kingdom, no application fee is charged. If such fees are to be collected, the rates need to be set so that the costs imposed for access are not so high as to deter potential applicants. At the most, fees need to be limited only to cost recovery, with no additional margin for profit, and a maximum limit needs to be imposed for all organisations. Charges can only cover reproduction costs, not search or collation/compilation time. Imposing fees in respect of the latter could easily result in prohibitive costs, especially if bureaucrats drag their heels when collating information in order to increase fees. Inspection of information in the offices of an agency should be free, even if charges are to be levied for providing copies to the requester. Fees should be waived where an application is in the public interest or where the imposition of fees would cause financial hardship. Key questions: Does the government wish to impose fees for access? If so, what amount will the fees be for access (eg. copying (on paper, CD, video, tape), taking samples)? How will fees be paid and collected? Will there be mechanisms for waiver or non-application of fees? How will the groups of people who are exempt from fees be determined? Approval before a request is rejected The Model IDP requires that before an application is rejected, the official processing the request must first discuss the request with the head of the organisation or their delegate. This recognises that, particularly in the early stages, officials may be cautious about disclosing information and may therefore tend to reject applications. To minimise the over-use of the exemptions provisions and give officials confidence in releasing information, the Model IDP therefore proposes that officials need to discuss every case with a senior officer before they can reject a request. This will help officials learn how to apply the Policy more effectively. It will also minimise the wrongful application of the Policy - and subsequent complaints, which experience in other countries shows takes more time (and therefore money) to correct, than if the Policy is applied correctly in the first instance. Key questions: Is the requirement that officials get approval from a senior officer before rejecting an application practical considering the local context? What other procedural oversight steps may need to be introduced to support officials to correctly apply the Policy?
Commissioned by the Pacific Media and Communications Facility, an Australian Government, AusAID initiative managed by MDI International in association with MC Media & Associates