Minerals Commission demands $1000 from The Fourth Estate in a Right to Information request

The Minerals Commission has demanded $1,000 (GH¢5,700) from The Fourth Estate in order to provide information requested under the Right to Information (RTI) Law.

The Fourth Estate had requested information on companies licensed to undertake mining in Ghana between January 2013 and May 2021, and companies whose licenses have been revoked or suspended within the same period.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 equivalent of $1,000 for the information.

Such demands per Regulation 4 of the Minerals and Mining (Licensing) Regulations, 2012 (LI 2176), apply to requests that of commercial value including cadastral maps and exploratory data of mining zones.

In the absence of a legislative instrument to guide fees which public institutions should charge RTI applicants, the Minerals Commission said it fell on its internal laws to charge the fees.

A response to The Fourth Estate’s request signed by the Chief Executive Officer of the Minerals Commission, Martin K. Ayisi, said:

“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).”

RTI advocates say such fees may deter the media, civil society and ordinary Ghanaians from using the law to request information.

A journalism lecturer and private legal practitioner, Zakaria Tanko Musah, said the Minerals Commission’s fees would amount to an attempt to monetise information, which ordinarily should be available to the public.

He said it was not out of place for the Commission to demand a fee, but it should not cost an arm and a leg.

“You will have to pay something, to be determined by the Minerals Commission, in the absence of fees and charges yet to be approved by parliament. But certainly, it should not be exorbitant to the extent of defeating the purpose of the RTI law.”

“You may have to consider going to the next stage of appeal,” he advised The Fourth Estate.

Lawyer and host of JoyNews’ Newsfile programme, Samson Lardy Anyenini, agreed with Mr. Musah. Mr Anyenini, who has been an RTI crusader, said the Minerals Commission erred.

He said that the commission should not have been inward looking in respect of the fees. Quoting the regulation which guides its internal fees and charges to The Fourth Estate, according to Mr. Anyenini, amounts to an illegality.

He explained that all laws about the supply of information were suspended when a request for information comes under the RTI Act.

“The things about which you have applied for information is of public interest, according to Section 75 of the law [RTI law], and because it is in the public interest, they are supposed to supply you the information at no cost.

“But, even if they insist that it is not of public interest, they are not supposed to reference you to their laws because their laws have become subservient to section 85 of the RTI law and as a result of that, they are supposed to ask you to pay for the cost of reproduction,” he explained.

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.”

Samson Lardy Anyenini said the cost of production could mean that an individual is charged for the cost of printing, photocopying or for the cost 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 last Thursday, Mr. Boateng said the fee an organization 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.

He added that while they awaited the passage of the instrument regulating fees and charges, they “expect some reasonableness in reproducing information because the constitution which is above all laws says we should provide information.”

Petition to RTI Commission

The Fourth Estate has petitioned the Right to Information Commission for a review of the Minerals Commission’s demand of $1000 before granting the RTI request.

The Right to Information act, 2019 (Act 989) was passed in 2019, after nearly two decades of its drafting and activism.

The President inaugurated the Right to Information Commission in October 2020 tasking them to oversee the smooth implementation of the law.

Other fees and court decisions

This is not the first time a public institution is demanding fees many see as “ridiculous” in an RTI request.

In July 2020, the  NCA asked the MFWA to pay GH¢2000 for information on the closure of some radio stations across the country.

The MFWA went to court to challenge the fees, and after almost five months of a legal tussle, the court gave its judgement on Thursday, June 17, 2021.

The Accra High Court presided over by Justice Gifty Adjei Addo slashed the cost of the information to GH¢1,500.

“I come to the conclusion that the fees payable cannot be under section 82 of the Electronic communication ACT 775 but 75 of the Act 989(Right to Information Act,2019 (989) [which applies to fees and charges of public institutions]. In any event, there are no prescribed fees as supposed to be provided by Parliament, but they have not been able to do that but their inactions cannot, however, deny somebody the right to information…,” the judge said.

The MFWA has expressed its disappointment in the judgment because the GH¢1,500 was unreasonable for information that could be given via email.

Ernest Norgbey Vs the EC

Justice Gifty Addo gave a similar decision in July 21, 2020, when she ruled on an RTI case brought to her court by a lawmaker.

Ernest Norgbey, MP for Ashaiman, had written to the Electoral Commission (EC) under the RTI law requesting information on the procurement procedure used by the commission to hire the services of two consultants—Dr Ofori-Adjei, an IT Consultant and Mr A. Akrofi, a procurement consultant.

The two were said to be very instrumental in the EC’s purchase of a biometric voter management system (BVMS). Mr Norgbey wanted to know whether the hiring of the services of the two consultants was in line with the Public Procurement Act.

The EC said it could not provide the information because parliament had not yet determined fees and charges for RTI requests.

Justice Gifty Adjei Addo, as she did in the MFWA and NCA case, ruled that the EC should give out the information but the MP should pay GH¢1,500.