By Sandun Jayawardana Confusion over what constitutes a Public Authority (PA) under the Right to Information (RTI) Act and uncertainty about who the designated Information Officers (IO) of various government entities are, marked the first week of implementation of the new law. They provided a window into the immense challenges that lie ahead, were the [...]


Public authorities confused, unprepared as RTI Act becomes operational


By Sandun Jayawardana

Confusion over what constitutes a Public Authority (PA) under the Right to Information (RTI) Act and uncertainty about who the designated Information Officers (IO) of various government entities are, marked the first week of implementation of the new law.

They provided a window into the immense challenges that lie ahead, were the public to use the landmark legislation to its fullest potential. For the moment, however, a lack of awareness among the citizenry, regarding the wide scope and benefits of the RTI Act, was also observed.

The Act came into force on February 3. In theory, there ought not to have been any obstructions to RTI requests to any of the PAs defined in the Act. In practice, it is not so simple.

The Ministry of Mass Media, which is tasked with the law’s implementation, said all 52 ministries had given details of their designated IOs this week. But the Sunday Times found, when making inquiries, that quite a few institutions did not know who they are. Phone queries to a dozen ministries were met mostly with confusion. Calls were transferred to various depts, in attempts to find out where their IOs were situated.

At two separate ministries, telephone operators first directed queries to their Information Technology (IT) Depts. The Ministry of Transport & Civil Aviation said it had no IO, as there was no circular yet on the matter. The Ministry of Sustainable Development & Wildlife did not have an IO either, but said to check with the Wildlife Conservation Dept (DWC). The DWC did have one, but she had been appointed to serve just the Dept and not the ministry.

The Sunday Times also experienced such confusion while attempting to submit RTI requests. When two journalists called over at the Fisheries Dept on Thursday, nearly a week after the law came into effect, officials were not clear about who their designated IO was. We ended up at the Director General’s office. We were asked what organisation we represented and copies of our official identity cards were taken along with our RTI applications.

We were then sent to the office of H.S.S. Lusena, Director (Administration). While he too, was not the designated IO, he made every effort to take our requests. He made several calls to ascertain who should receive our applications and who had been trained on the issue.

Still unable to determine who should take the applications, Mr Lusena sent a journalist to the relevant section head. But, instead of giving us a written acknowledgement, as required in the RTI gazette, it was entered into the ‘Internal Mail’ book which records when a letter is sent from one in-house dept to another.

Mr Lusena eventually said the officer-in-charge was on leave and was unsure of the procedure to acknowledge applications. “It is good you called over, our officers are getting alert to applications being made,” he said courteously. “I am sure that, by next week, with more awareness, they will be ready to handle these situations.”

The Colombo Municipal Council (CMC) did not have a designated IO even by February 10. A journalist from the Sunday Times filed two RTI requests on February 3. It was CMC Commissioner V.K. Anura who took them. He promised to forward them to the relevant depts. but did not provide an acknowledgment, saying he did not have one to give.
Upon returning to the CMC this week, Mr Anura found that one of his RTI requests had been misplaced, while officials in the other dept to which his application had been forwarded, refused to issue an acknowledgment, saying it was the Head of Department’s job and she was at a meeting.

Even those IOs appointed under the Act said they were not wholly aware of their role. Some said they understood the law, but were still familiarising themselves with the February 3 gazette which contained the regulations. Some were apprehensive about the type of information they could release.

“What if someone asks for names of those who have testified at a disciplinary inquiry or, the educational qualifications of people?” wondered one Zonal Education Director who was a designated IO. “Do we give those or not?”
The Additional Secretary of a Ministry said privately, that her training was inadequate. She said IOs will ask the RTI Commission for proper training sessions.

“There needs to be more proactive participation from the Government,” said Transparency International Sri Lanka (TISL) Executive Director, Asoka Obeyesekere. He was concerned about the apparent unpreparedness of officials. His employees too, were greeted with confusion, when they went to submit RTI requests. The Health Ministry, in clear violation of the RTI Act, refused outright, to accept an application regarding chronic kidney disease.

“There was also consternation within official circles about what constituted a PA under the Act,” said Radika Gunaratne, a lawyer and RTI Programme Coordinator for the Sri Lanka Press Institute (SLPI). “The Government must publish the list of institutions,” she maintained. A query raised by the SLPI on this, had the Ministry of Mass Media promising it would release the list of named PAs, “soon”.

The SLPI RTI helpline was flooded with calls from February 3rd itself. One caller complained there was no IO in the Geological Survey & Mines Bureau. However, when the SLPI checked, it was confirmed that the Registrar had been seconded to the post, and the caller notified accordingly. State Media institutions had not yet appointed IOs.

Despite the chaos, there were notable RTI submissions during the first week. On the very day the Act came into force, the mothers of 15 missing persons from Batticaloa, lodged applications at several offices including the police, a branch of the Human Rights Commission and the District Secretariat.

Deputy Minister of Social Empowerment & Welfare, Ranjan Ramanayake submitted a request on Day 1, seeking details from the Divulapitiya Divisional Secretariat on soil and sand excavation permits. On February 8, the All Ceylon General Port Employees Union requested the Ports & Shipping Ministry for information of any decision to sell the Colombo East Container Terminal, the Hambantota Port and the Trincomalee oil storage tanks.

“Most IOs are the Additional Secretaries of the respective ministries,” asserted Mass Media Ministry Additional Secretary, B.K.S. Ravindra. In depts, it should be a Grade II Officer of the Sri Lanka Administrative Service. In District and Divisional Secretariats, it would be the Additional District Secretary and the Additional Divisional Secretary, respectively.
The RTI Act provides that, where an IO has not been appointed, the Head/CEO of that PA automatically assumes the role and must accept information requests. There is no option to decline.

“Over 1,500 IOs have already been appointed,” Mr Ravindra said. While all PAs are required to display the names and contact details of their IOs, he conceded this was yet to happen in many places. He expected this to change in the coming days. The Mass Media Ministry will also list all IOs in a dedicated RTI webpage to be launched on February 17.
“IOs are now properly in place only at ministries, departments, district and divisional secretariats,” claimed Mass Media Minister Gayantha Karunatilleke. There were still questions regarding key institutions such as the police, hospitals and schools.

While some police stations have given details of their IOs, the process was not methodical, the Minister said. “We will hold discussions in the coming days on the appointment of IOs in these areas.”

“A week after the Act became effective, awareness among the population, including State employees was still less than 25%, said Director General of Information, Ranga Kalansooriya. “The onus is on the media and civil society to create awareness about the law’s benefits and usage,” he said.

“There will, undoubtedly, be confusion, because we did it (implemented RTI) within six months,” he said. “You can’t expect 20 million people to come on board at once.” He said Bangladesh was a comparable situation. There it took seven years to create awareness and smooth implementation. “Things will improve with time,” he stressed.

Additional reporting by Akash Widanapathirana

Sri Lanka’s Right to Information Regime now top 3 in the world
The international Right to Information (RTI) Rating Agency, the Canadian Centre for Law and Democracy (CLD) announced on Friday (10) that Sri Lanka’s Right to Information (RTI) Regime has now been elevated to third place, globally.
Congratulating the RTI Commission and the Government of Sri Lanka, the CLD announced its new rating, following the recent gazetting of the Commission’s Rules on Fees and Appeals, as well as Regulations by the Ministry of Parliamentary Reforms and Mass Media. The RTI Commission had proposed three new Regulations, strengthening the proactive disclosure responsibilities of Public Authorities (PA), stipulating standards for the appointments of Information Officers (IO) and allowing an open, re-use policy of all information obtained under the RTI Act.In its Statement, the CLD pointed out that the combined effect of the Rules and Regulations, added a full 10 points to Sri Lanka’s already strong score of 121 points, out of a possible total of 150 on the RTI Rating. Sri Lanka now achieves a new score of 131 points and boasts the third strongest legal framework for RTI in the world and the strongest in South Asia, surpassing India’s 2005 RTI Law, which had long been the standard setter in the region.

“Countries often go up a few points on the RTI Rating when they adopt Rules and Regulations”, said CLD Executive Director, Toby Mendel. “But this is a impressive jump up for a country which already had a very strong score. So, both the Minister and the Commission deserve to be congratulated for their good work.”

The CLD has observed that some of the key improvements include the fact that PAs are required to transfer requests to other authorities where they do not hold the requested information. The Rules on Fees have been clarified and are, for the most part, progressive. Further, clear Rules on open, reuse of information have been introduced, and the power of the Commission to order PAs to take structural measures to improve their general responses to information requests, has been clarified. PAs are obliged to provide training to their IOs.

Sri Lanka now faces the challenging task of implementing its strong legal framework for the Right to Information. The CLD has called upon the Ministry, public authorities and the Commission to ensure that this happens, and noted that, it remains willing to provide support for this process.

The Global RTI Rating is a comparative analysis of RTI laws worldwide, which the CLD developed in collaboration with global transparency experts. The Rating provides a reliable tool for advocates, critics, legislators and journalists to measure their country’s RTI Laws against their neighbours and against international standards. Its rankings are cited widely in international media

The RTI Rating assesses legislation based on 61 indicators of a strong RTI Law, and is divided into seven categories: Right of Access, Scope, Requesting Procedures, Exceptions & Refusals, Appeals, Sanctions & Protection and Promotional Measures.

Batticaloa, Gampaha first off the block in the provinces
Lack of awareness among officials and the public, coupled with key deficiencies in handling RTI requests, were noted in areas outside Colombo, in the first week of the RTI Act being in operation.

On February 3, 15 women from Batticaloa began an attempt to locate their disappeared relatives. The group visited at least five offices to lodge their applications. They included the Batticaloa District Secretariat, the regional branch of the Human Rights Commission, offices of senior police officers and the prisons. They claim to have faced severe shortcomings and administrative delays in filing the requests.

“We had to explain to the Government officers about this law,” said Amalraj Amalanayagi, a mother of three, who is still looking for her husband. “There were no Information Officer’s (IO) appointed in the offices we visited,” They filed RTI applications seeking to know what had happened to complaints they had lodged in the past, over the disappearance of their loved ones.

At the Batticaloa District Secretariat, there were no IOs and the District Secretary refused to issue an acknowledgement letter, but said it would be sent in three days. “So far, no such letters have come from the office,” Mrs Amalanayagi said. She added that, all of them intended to visit the offices where they filed their applications, in two weeks, if no replies were given to them.

Bilingual proficiency had also been a problem. Mrs Amalanayagi said the police gave her a receipt as an acknowledgment. It said in Sinhala that her husband had been “abducted by unknown individuals”. When she had demanded it in Tamil, she was told to return the following week.

The Sunday Times checked with several District and Divisional Secretariats outside Colombo, for RTI applications submitted within the first week. Only the Gampaha District Secretariat reported having received any. “Accordingly, two RTI requests received this week are being reviewed,” said Additional District Secretary Anura Priyabandu, the Secretariat’s IO.
In Districts such as Anuradhapura, Polonnaruwa and Galle, officials said they were ready to receive RTI requests, but none had been submitted. The general consensus was that the public were still largely unaware of the RTI Act, and how it could be used.

Typically bureaucratic, officials declared they had “all the forms ready” with regard to RTI. They said applications must be properly filled by the applicant. While the gazette notification on RTI issued on February 3 contains an official RTI01 Application Form, it also states it is not compulsory to complete this Form. In fact, the gazette emphasizes that any written letter, e-mail or a verbal request with the essential details to identify the requested information is sufficient for an RTI request.

It was not immediately clear if officials were aware that an IO could not reject a request simply on the basis that it was not submitted by filling the RTI01 Form.

RTI Commission sans own Fund till Budget 2018
The Right to Information (RTI) Commission would not have its own Fund until arrangements are made for it in next year’s Budget, the Sunday Times learns. Accordingly, monies required by the Commission would be channeled through the Presidential Secretariat and released ad hoc, as per the Commission’s requests.

This, however, runs counter to the mandatory requirements of Section 16 (1) of RTI Act No.12 of 2016, that the RTI Commission must have its own independent Fund, into which all monies voted by Parliament must be deposited. The requirement of a separate Fund is common to all independent Commissions, and was included in the RTI Act, given the importance of ensuring the financial independence of the Commission.

Speaking to the Sunday Times, Executive Director of the Canadian based global RTI Rating Agency Centre for Law and Democracy (CLD) Toby Mendel observed that:

“Among many other needs for successful implementation of an RTI Act is an independent and effective oversight body which, in the case of Sri Lanka, is the RTI Commission. Independence, crucially, depends on the manner of appointment of members and the way funds are allocated, which should be via Parliamentary vote. Funding should be sufficient to allow the body to do its job effectively, including setting its structure and appointing its staff and, once allocated, be controlled by the Commission.”

“It was not possible to set up a separate Fund for the RTI Commission under the 2017 Budget, as the Commission was constituted too late for it to have a head of expenditure, said Mass Media Minister Gayantha Karunatilleke. This meant that funding for the Commission automatically fell under the Presidential Secretariat.

Three Commissioners of the five-member independent RTI Commission were appointed by the President with effect from October 1, 2016. Recommendations by the Constitutional Council in respect of the appointment of two remaining Commissioners were sent to President Maithripala Sirisena by end October 2016, but the appointments were made only at the end of that year.

The Minister insisted that the move was not meant to deny financial independence to the Commission. “The Government has no intention of continuing this practice. This was simply a procedural issue. It will be rectified in next year’s Budget and the Commission will have its own Fund.”

As earlier reported by the Sunday Times, however, while Rs 25 million has been allocated to the Mass Media Ministry, which is tasked with implementing the Act, just Rs 3 million has been allocated to meet the recurrent expenditure of the RTI Commission.

The Minister would not be drawn into commenting on specific allocations for the RTI Commission or its members, only insisting that there was “more than enough funds” for RTI implementation by his Ministry, and pointing out, a supplementary estimate could be asked for in case more funds were required by the Commission.

Deputy Minister Karunaratne Paranavithana also insisted that the move would have no bearing on the activities of the RTI Commission. He scoffed at allegations that, not providing a separate Fund for the Commission would deny it independence: “Funds don’t decide a Commission’s independence. The funds are anyway State funds released by Parliament. There is no reason why it should affect the Commission’s independence.”

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