Minerals Commission goes to Court of Appeal to fight The Fourth Estate’s RTI request

The Minerals Commission has filed for a judicial review at the Court of Appeal in Accra to challenge a high court ruling on how much the Commission should charge for a right to information (RTI) request.

The Minerals Commission charged The Fourth Estate $1000 in 2021 for information on companies granted mining licences.

The Fourth Estate petitioned the RTI Commission on the charge. The RTI commission ruled that the Minerals Commission should release the information to The Fourth Estate at GH¢1.90 (approx. GH¢2) for PDF copies and GH¢1.80 per page for an A4 photocopy.

The Minerals Commission disagreed with the RTI Commission’s ruling and went to the high court to challenge it. The high court upheld the RTI Commission’s ruling, a judgment that displeased the Minerals Commission.

It has, therefore, taken the fight to the Court of Appeal. In court documents available to The Fourth Estate, the Minerals Commission contends that the high court judge, Justice Gifty Agyei Addo, did not only err in law by directing the Minerals Commission to give the information to The Fourth Estate.

It also said, “The judgement is against the weight of the affidavit evidence before the court.”

“The learned judge erred in law when she held that the 1^st Respondent [RTI Commission] is vested with power under its enabling enactment (“Act 989”), to (i) determine whether the Appellant [Minerals Commission] misapplied the applicable statuses including regulation 4(1) of L. I 2176 as to the statutory fees in force as approved by Parliament for the Appellant (II) review and overturn the Appellant’s decision on fees on the basis of the misapplication of law,” the appeal partly reads.

The Minerals Commission is also praying to the Court of Appeal to, among other reliefs, order that “the application fee payable for the requested information is the statutory fees in force under L. I 2176 and as stated by the Appellant in its letter of July 19, 2021, to the 2^nd Respondent [The Fourth Estate].

The RTI request that sparked the legal battle

The Fourth Estate had requested a list of licensed mining companies and those whose licences had been revoked.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

“Kindly be informed that in accordance with section 75 of Act 989, Section 103 of the Minerals and Mining Act, 2006 (Act 703), as well as Regulation 4 of the Minerals and Mining (Licensing) Regulations,2012 (LI 2176), the application fee payable is the Ghana Cedi equivalent of five hundred US Dollars (US $500) per request. Thus, the applicable fee payable for the above information is the Ghana Cedi equivalent of one thousand US Dollars (US$1000),” the mining regulator said in response to the RTI request.

The Fourth Estate wrote an appeal for a review of the Minerals Commission’s fees for information.

“The Commission directs the Chief Executive Officer of the Minerals Commission, Mr Martin K. Ayisi, to ensure the application of a charge or fee of either 1.80 pesewas multiplied by the number of pages of information to be printed or 1.90 pesewas if the information in its entirety is to be emailed to the Applicant in PDF format,” the RTI Commission ruled in July 2021.

The Minerals Commission proceeded to the high court to challenge the RTI Commission’s ruling describing it as “irrational, illegal, unconstitutional and flawed”.

High court tussle and judgment

In its writ, 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.”

It insisted that The Fourth Estate’s 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 said the $1,000 charge was from Parliament’s L. I 2176, titled “Minerals and Mining (Licensing) Regulation, 2012, an institution, the Minerals Commission argued, is clothed with more powers than the RTI Commission.

The RTI Commission said while it acknowledges the existence of L. I 2176, it does not apply to ordinary Ghanaians or journalists seeking statistical information, hence making the charge of $1,000 illegal.

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”.

The high court agreed with the RTI Commission’s ruling on how much the Minerals Commission should charge even though parliament was yet to set the fees to be charged for RTI requests.

“I cannot, but be bound by this sound reasoning of the highest court of the land that the inaction of Parliament should not prevent a constitutionally guaranteed right of a person to be violated. While it is within the remits of Parliament to engineer the necessary legislation to effectuate the demands and payment of fees under Act 989, the failure thereof, respectfully, cannot be a penal code for an applicant such as the instant,” Justice Gifty Adjei Addo ruled on March 17, 2022.

“From the foregoing, I cannot accede to the contention of the applicant [Minerals Commission] that the respondent [RTI Commission] acted in excess of its jurisdiction, neither do I find any illegality, unreasonableness, or arbitrariness occasioned per the decision of the Respondent.

“Accordingly, the instant action is dismissed for want of any merit,” the judge said.

That challenge at the high court cost the Minerals Commission GH₵ 27,000.

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