The Fourth Estate has petitioned the Right to Information (RTI) Commission on the refusal of 11 ministries, departments, and agencies to grant access to information it requested under the right to information law.
Together with an earlier petition sent to the RTI Commission on the Minerals Commission’s refusal to grant The Fourth Estate information, the petitions are the first the RTI Commission is receiving since it was inaugurated in October 2020.
The 11 public institutions comprise four ministries, a metropolitan assembly, a security service, two regulatory institutions and three other state agencies. In all, 12 petitions were sent because two were sent against one of the ministries.
The RTI law, Right to Information Act, 2019, (Act 989), requires that applicants seeking information exhaust internal review mechanisms with such institutions before seeking the intervention of the Commission.
The internal review entails appealing to the head of the public institution after the information officer of the institution denies the applicant access to the information sought. Per the law, the information officer is deemed to have denied an applicant access to information if the officer fails to communicate a decision on the availability or otherwise of the information requested 14 days after receiving the application.
The Fourth Estate followed the process. However, most of the institutions did not even acknowledge receipt of the applications and subsequent appeal to their heads.
Others either sent emails or made phone calls to acknowledge receipt of the requests but failed to supply the information requested, leaving The Fourth Estate with no choice than to seek the intervention of the RTI Commission.
Section 43 (2) of the RTI law clothes the commission with powers, including resolving complaints through negotiation, conciliation, mediation or arbitration; and the power to make any determination as the Commission considers just and equitable including issuing recommendations or penalties in matters before the Commission
The 12 applications to the RTI Commission for review filed on July 7, 2021, come on the heels of a similar one The Fourth Estate filed against the Minerals Commission on June 17.
The Minerals Commission had demanded the cedi equivalent of $1,000 for information The Fourth Estate requested on companies licensed to undertake mining in Ghana between January 2013 and May 2021, and companies whose licenses have been revoked or suspended within the same period.
But quoting the highest fee any institution has yet demanded to release information under the RTI Law, the mining regulator asked for the highest fee yet for an RTI request.
Per Regulation 4 of the Minerals and Mining (Licensing) Regulations, 2012 (LI 2176), such fees apply to requests that of commercial value including exploratory data of mining zones.
With Parliament yet to pass a legislative instrument to guide fess and charges for RTI requests, some state institutions are demanding what advocates of the law described as “outrageous” fees.
Others are also using their internal laws and regulations to treat RTI requests as a source of internally generated funds, the law’s advocates have said.
However, the courts say the RTI law supersedes all other internal laws and regulations regarding request for data under the right to information law.
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,” the court said in reference to NCA’s request for GHc 2,000.
Samson Lardy Anyenini, private legal practitioner, said the cost of production could mean that an individual is charged for the cost of printing, photocopying or for the cost of CD-ROM or USB drive on which information is supplied.
The Executive Secretary of the Right to Information to Commission, Yaw Sarpong Boateng, said public institutions should not turn the fees into another source of internally-generated funds.
At MFWA’s forum in Accra on June 17, 2021, Mr. Boateng said the fee an organisation charged must be for reproducing the information and not for profit.
“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.
“We are hoping that when it goes through, it will reflect obliviously the intention of the law,” he said.
The law, which took effect on January 2, 2020, is meant to make it easier for persons to request and receive information from public institutions in Ghana.
The RTI Bill was first drafted in 1999, reviewed in 2003, 2005 and 2007, but presented to Parliament in 2010.
Parliament passed it after sustained pressure from civil society organisations. But even after the passage in 2019, the government deferred its implementation to 2020.
President Akufo-Addo in October 2020 inaugurated the seven-member RTI Commission to intervene when an applicant’s request for public information is denied.