Minerals Commission loses case against RTI Commission over $1000 charge for information

The RTI Commission’s order to the Minerals Commission to release public information to The Fourth Estate for GH¢2 has been left intact by the High Court.

The Minerals Commission had challenged this decision at Accra High Court, but on March 17, 2022, Justice, Gifty Agyei Addo, dismissed the Minerals Commission’s suit.

“The application for certiorari is dismissed for lack of legal grounds,” she brought to an end a High Court legal tussle that began in August 2021.

By dismissing the case, the court has indicated that the RTI Commission did not exceed its powers when it quashed the Minerals Commission to charge $1,000 (GH¢7,000) for information requested by The Fourth Estate.

The Fourth Estate had requested a list of licenced mining companies and those whose licences had been revoked. The media house also wanted to know how much the Minerals Commission had raised from charges on the importation of earth-moving equipment.

The Minerals Commission said The Fourth Estate request fell under the Minerals and Mining Act 2006 (Act 703), which says the Commission shall maintain “a register of mineral rights in which shall be promptly recorded applications, grants, variations and dealings in, assignments, transfers, suspension, and cancellation of rights.”

The Minerals Commission argued that the Act also mandated any member of the public to pay prescribed fees in order to get a copy of the records. It then charged The Fourth Estate $1,000 in order to release the information.

The Fourth Estate appealed to the RTI Commission for a review. The RTI Commission ruled that The Fourth Estate should pay only GH¢2 if the information was to be sent in the PDF format the news entity had requested the information.

In court, the Minerals Commission argued that “…in so far as the information requested by the Interest Party relates to mineral rights, any information from the Register of the Mineral Rights, is to be furnished in accordance with the prescribed legal requirement which includes payment by the Interest Party of the statutory fee.”

That fee prescribed by parliament was $1,000, the Minerals Commission said, adding that it was simply implementing a decision by parliament, an authority much higher than the RTI Commission.

“Respectfully, my Lord, it is only parliament that is mandated to enact laws and provide for fees to be charged…” the lawyer for Minerals Commission, Anna Fordjuor, explained.

In the Commission’s affidavit, she said although parliament had approved fees the Minerals Commission could charge, it had not yet approved any fee or regulation to guide how much public institutions could charge under the RTI law.

The RTI Commission’s order for the payment of approximately GH¢2 for information, which the law directs the Minerals Commission to charge $1,000 was, therefore “irrational, illegal, unconstitutional and flawed,” the Minerals Commission’s lawyer insisted.

The Minerals Commission said it was also illegal for the RTI Commission to “unilaterally impose a fee of GHS 1.80 for hard copies of the information or GHS1.90 for soft copies of the information without the authorisation by parliament”.

The Minerals Commission maintained that the RTI Commission’s decision was “flawed with patent errors of law on the face of the record.”

You used the wrong law – RTI Commission explains Mineral’s Commissions own law

In response, the RTI Commission argued that the Minerals Commission had misunderstood its own laws when it categorised The Fourth Estate’s request for information as a request for mineral rights.

The RTI Commission argued that a simple look at the title of the regulation which the Minerals Commission used to charge $1,000 shows the mining regulator got it wrong. That regulation, L.I 2176 is titled “Minerals and Mining (Licensing) Regulation, 2012.”

The RTI Commission said when this title and the regulations are read together it is “clear from the language…that mining companies or individuals intending to acquire mining rights or licences are the targets.”

The RTI Commission said the mining regulation did not apply to ordinary Ghanaians or journalists seeking statistical information and therefore the Minerals Commission could not be charging $1,000.

The RTI Commission explained that it did not set aside a decision by parliament or the Minerals and Mining Regulations, those laws and fees simply did not apply in this case.

“What the [Minerals] Commission, however, seems to be angry and annoyed with, is the conclusion reached by the [RTI] Commission…in respect of cost payable by [The Fourth Estate]”, the RTI Commission said.

The RTI Commission’s lawyer, Kwadwo Addeah-Safo, argued that in arriving at GH¢1.90 (approx. GH¢2) as the fee to be charged for PDF copies and GH¢1.80 per page for an A4 photocopy, the Commission relied on “the reasonable man’s test” since Parliament was yet to approve fees and charges under the RTI law.

To arrive at this charge, the RTI Commission checked the cost of doing an A4 photocopy at the business center of the Accra High Court and found that it was 0.30p per page.

It also checked how much was charged in countries that also have RTI laws. It found that other jurisdictions charged $0.20 per page and in South Africa, a copy per A4 page was 60cents.

The RTI Commission also noted that since citizens had a right to information, whatever fees charged should be “pegged at an amount only to cater for the cost of reproducing that information to the applicant”.

“They should never be pegged at amounts aimed at generating money or commercialising the venture,” Kwadwo Addeah-Safo argued.

The court, after examining the arguments made by the parties, concluded that the Mineral Commission’s request for a judicial review did not have any legal basis since it had not shown that the RTI Commission erred on the basis of law.

Justice Gifty Agyei Addo declined to award cost to the RTI Commission for a case that has cost the Minerals Commission much more than the GH¢2 it had refused to accept and, perhaps, the GH¢7000, it wanted to charge.