The Minerals Commission has defended its demand for $1,000 for a right to information (RTI) request made by The Fourth Estate, amidst criticisms that it is monetising public information.
The Acting Chief Executive Officer of the Commission, Martin Kwaku Ayisi stated in a press statement that “The Fourth Estate, was asked to pay the fees DEMANDED by law, NOT on the whims and caprices of the Commission.”
On Friday, June 18, 2021, The Fourth Estate published a story titled : Minerals Commission Demands $1000 From The Fourth Estate In A Right To Information Request detailing the commission’s response to an RTI request.
The Commission, in the June 19, 2021 statement reacting to The Fourth Estate’s publication, said it would not back down on its demand of the $1,000 fee, which some RTI advocates have described as “ridiculous”.
In that initial response to The Fourth Estate, the commission said its decision, to collect almost GH¢ 6,000, was based on the provisions of Regulation 4 of the Minerals and Mining (Licensing) Regulations, 2012 (L.I 2176)] on fees and charges.
With The Fourth Estate and RTI activists disagreeing with the commission’s demand, the Acting Chief Executive Officer of the Commission, Martin Kwaku Ayisi, fired back on Sunday, saying the commission’s laws on fees and charges were blind to whether information carried a “commercial value” or not.
“Unfortunately, our laws do not make the distinction between information of ‘commercial value including cadastral maps and exploratory data of mining zones…’ that Mr. Aziamor-Mensa [of The Fourth Estate] has created for his readers. The information he requested is found in the register of mineral rights, which per section 103 of Act 703, requires the payment of a prescribed fee. As we have noted above and in our response to the from The Fourth Estate, the prescribed fee is pursuant to regulation 4 of LI. 2176 request,” the statement said.
It said the demand for the $1,000 was not made according to any individual’s intuition but the law.
Court decision
While the Minerals Commission refuses to budge on its fees and acknowledge the superiority of the RTI law on information requested under the RTI, a High Court has a contrary view.
A high court judge, Justice Gifty Agyei Addo, who presided over the Media Foundation for West Africa (MFWA) and the National Communications Authority (NCA) case on RTI fees, stated in her judgment that agencies should not apply their respective legislative instruments to determine charges relating to Right to Information requests.
“Clearly the framers of Act 775 did not intend it to be the Right to Information Act. That is why specific legislation was provided for in the Right to Information Act, Act 989,” she ruled.
“The respondent [NCA] has therefore misconceived the applicability of fees and charges intended for the objects of their enabling statues as if it is also applicable to request for information under Act 989.”
A private legal practitioner, Samson Lardy Anyenini, had said that the commission’s laws on fees had become subservient to section 85 of the RTI law. But the Minerals Commission said it would be inaccurate to refer to a law passed by Parliament to regulate the mining regulator’s fees as “internal laws”.
“We reiterate that our fees and charges, prescribed by law, are not ‘internal fees.”
According to Mr. Ayisi, it would be wrong for the fees and charges approved by Parliament for services the commission renders, to the general public, to be described as “internal fees” or an “illegality.”
While the Mineral Commission said it is ignorant of the fact that any information request which comes under the RTI Act should carry fees proposed by the Act 989, as Mr. Anyenini indicated, the mining regulator said Act 793(miscellaneous Provisions) Act, 2009 empowers it to charge such a fee.
“We are not aware that the ‘laws about the supply of information were suspended when a request for information comes under the RTI Act.’ In contrast, we find that under section 75(1) of the RTI Act, ‘an applicant seeking access to information under [the Act] shall pay the fee or charge approved by Parliament in accordance with the Fees and Charges (Miscellaneous Provisions) Act,2009 (Act 793).'”
On Thursday, June 17, 2021, the same day the same the High court gave its judgment on the MFWA and NCA case, the Executive Secretary of the Right to Information to Commission, Yaw Sarpong Boateng, warned public institutions not to turn the fees into a source of money-making avenues.
“The Law does not intend that any public institution would profit from generating information. We have made a proposal as requested by the law under the section that talks about fees to the Ministry of Finance, which is supposed to lay it before the Parliamentary Subsidiary Legislation Committee, where such approvals are given.”
The High Court decision, which asked the MFWA to pay 1,500 cedis to the NCA for the RTI request, has raised concerns among the Right To Information coalition which championed the passage of the law.
Lawyer Samson Lardy Anyenini, a member of the coalition, has criticised the judgment as a decision that failed to “apply the demand of reasonableness or the law.”
“The courts fix the fees without ascertaining the exact amount required to reproduce the information sought. In the EC case, the MP paid the ¢1,500 only to realise it was for information on only two sheets of paper,” he wrote in his weekly column, Samson’s Take.
He said the demand by the Minerals Commission was an attempt by some public officers to “make nonsense” of the law.
