By Rohan Samarajiva Ph D
What is this right? It has been reported that the President told the (selected) editors he had over for a meal and a chat that the Right to Information (RTI) Law is unnecessary; they just had to ask for a file and he would give it to them. Minister Navin Dissanayake, when asked about the refusal to allow the law to go through at the Sri Lanka Economic Summit last week, said that his late father and the late Mr Lalith Athulathmudali, when they were in opposition, used to get files without the help of legislation. If the UNP got its act together, it too would get files from disgruntled government servants; no need for a RTI Act.
Both responses miss the point by a mile. At issue is a RIGHT, a legally enforceable claim. The President, though a lawyer, thinks in terms of quid-pro-quo favours being exchanged among the connected. Here’s a file; say thank you and be nice about what you write. Minister Dissanayake is good at debate; but he’s asking government officials to break the law.
Under common law (and our Constitution), there are remedies for citizens unhappy with government action or inaction: the writs of certiorari, mandamus, quo warranto, etc. The RTI differs principally from those created by the writ remedies because it imposes radically lower costs on the citizen.
No need to retain counsel, prepare court papers, submit evidence to convince the Court it is a legitimate claim, etc., just a simple request directly from the citizen to the government department or body.
Possible problems (and solutions)
When I asked an Indian colleague about the Indian RTI law some time back, he laughed and said one could drive a truck through it; he considered the exceptions too broad. An example: recently there was a national debate in India about the central government’s proposal to exempt the Central Bureau of Investigations (CBI) from the RTI law.
What is noteworthy is that the CBI has NOT been exempted for the past five years; what is even more significant is that the debate is taking place is not about the RTI per se, but about what can be legitimately excluded from its provisions: the CBI as a whole; or simply certain specified inquiries.
The bill placed before Parliament by Karu Jayasuriya, MP, also has holes; big ones that one could drive a truck through. For example there is an exception that allows information not to be released if it is considered not to be in the public interest.
Exceptions are a problem for those who want more transparency. They are a solution for those who worry about national security being compromised. There is no danger of the government ever having to answer questions about KP under the RTI law as presently framed. And there is little chance our Supreme Court will interpret the law against the interests of the government.
Some worry about fees being used to frustrate the intent. The Bill allows fees per page to be set by each government entity, within the guidelines set by the RTI Commission.
It is irresponsible to not charge a fee for copies; it is also inimical to the environment. So it is good that fees are charged. What if a simple request generates a 7,000-page response? Even at LKR 10 a page, that would amount to LKR 70,000. At LKR 50/page, that would be LKR 3.5 lakhs. That would indeed be a problem.
There is an art to asking questions: not too broad, not too narrow. Too broad and the questioner can be drowned in information; too narrow and the questioner gets nothing. The fine art of question design, well exhibited at question time in the old Parliament by the sea, has gone into decline these days.
RTI questions will be framed by lay persons. Some are bound to be overbroad, overnarrow, unclear, ambiguous, etc. While the Bill itself does not give a remedy, it is possible to craft remedies under the regulations. For example, one could SMS an estimate of the cost to the RTI applicant. It’s only after she accepts the estimate that the photocopies will be made. Better for all concerned and for the trees and the photocopy machines too.
In the US RTI was not really a right for citizens; it is a right for the media (asking questions on behalf of citizens) and for corporations looking for information about government actions that affect them and also about competitors.
But India has demonstrated that its RTI is truly a citizen’s right. So many citizens have asserted the right to information, that 12 have already paid the supreme price. When people get killed for exercising a legal right, the law that created the right demands respect. RTI in South Asia serves the common person, not just the media and the people who can afford law firms.
I came from the US to head the Telecom Regulatory Commission(TRC) in 1998. One thing that surprised me was the form of communication used by the telecom operators (the principal clients of the TRC). Their letters were accompanied by a whole sheaf of copies of related correspondence, including copies of letters sent by the TRC, marked as “for your added convenience.”
I asked why. I was told that government organisations were generally unable to locate related correspondence. If attachments were not sent, one of two things could happen: the response would be delayed because the relevant officials were looking for the file, or a decision could be made that disregarded previously settled matters.
Once over my original surprise, I found myself playing the same game. When I wanted a quick, consistent decision from a peer/superior organisation within government, I too would attach all the related correspondence marked “for your added convenience.”
Here’s an unintended benefit of the RTI Law. When all government organisations are under the gun of penalties for every day beyond the permitted period, they will have strong incentives to improve document-management practices. All those who engage in regular interactions with government would enjoy the collateral benefits of no longer having to send the entire file along with a letter. And of course the environment would benefit too.
Seems like a good reason for Minister Dissanayake, a young man wanting to leave a mark on the world, to get behind the RTI (not necessarily the Karu Jayasuriya version; there are others floating around). Among the rationales are (a) creating strong incentives for better document (and knowledge) management in government organisations, and (b) removing the archaic culture of secretive governance from within government and thereby making government more efficient.
I can think of no better way to advance State Management Reform, Minister Dissanayake’s portfolio and mission. Right to information will give us more effective, efficient and accountable government and save some trees and toner too. That, truly, is a win-win solution.