Above the law

There are certain areas under the law which are beyond the information seekers

Above the law
Exemptions mentioned in the right to information acts of the provinces and the federal government are questionable for making important information inaccessible, experts say.

While KP, Punjab, Sindh and the federal government have enacted their specific right to information laws over the last few years, Balochistan has the same old Balochistan Freedom of Information Act (FOI), 2005.

The Punjab Transparency and Right to Information Act, 2013, for example, says, “A public information officer may refuse an application for access to information where disclosure of the information shall or is likely to cause harm to — (a) national defence or security, public order or international relations of Pakistan, (b) a legitimate privacy interest, unless the person concerned has consented to disclosure of the information; (c) the protection of legally privileged information or of the rules relating to breach of confidence; (d) the legitimate commercial interests of a public body or a third party, including information subject to third party intellectual property rights; and (e) the life, health or safety of any person,” among a few others.

Zahra believes though that the exemptions in RTI laws in Punjab, KP, and Sindh are comparatively reasonable because the lists are narrowly drawn.

Do the exemptions serve the purpose of providing important information to ordinary citizens? “If the primary objective of a law is to promote access to government-held information to citizens then exemptions on categories of information accessible negate the concept and defeat the purpose of the exercise,” says Adnan Rehmat, senior media analyst.

The Balochistan Freedom of Information Act, 2005, for instance, is cited as being even worse when it comes to exemptions in the way of seeking information. In the same way, the federal government’s Right of Access to Information Act 2017 also bars access to the official record of armed forces, defence installations, details of individuals’ bank accounts, defence, and issues of national security, etc. Analysts believe the federal Right of Access to Information Act 2017 is as restrictive as the Freedom of Information Ordinance 2002 that it repeals.

“The FOI in Balochistan is not clear as to what is accessible and what is not. In the same way, the federal law on the right to information passed in October 2017 does not offer much as it has three lists,” says Moonis Kainat Zahra, Project Manager, Centre for Peace and Development Initiatives (CPDI).

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“Under the federal law on RTI, information for entries under the first list is accessible, information under the second category is not to be provided, while information for subjects under the third list is conditional upon certain things. This leaves people confused,” she explains.

Zahra believes though that the exemptions in RTI laws in Punjab, KP, and Sindh are comparatively reasonable because the lists are narrowly drawn. “The exemptions mentioned in laws of the three provinces appear to be rather clear on paper,” she mentions but is quick to add, “On the ground though, people still face a lot of difficulties, such as delays and refusals in KP and Punjab.”

Under the federal law on RTI, the minister in-charge of a concerned government department can declare any information classified. “The law authorises a minister to refuse any information, irrespective of it being classified or available. This is questionable. It should be for the commission to decide,” she believes.

Adnan Rehmat agrees, “The trick is to minimise exemptions based on defining an exemption. The best touchstone for outlining the parameters of any exemption is ‘public good’. Any information that is required by citizens to make informed decisions on issues that can help them enforce their fundamental rights cannot be exempt from access,” he says, adding, “Any person, office or function financed with taxpayer’s money should not be exempted.”

Chapter four of CPDI’s country briefing paper on right to information in Pakistan, titled, “Countering Secrecy Narrative through RTI,” says “The key pillars of secrecy narrative in the country like national security, threat to safety of public officials, privacy of elected representatives and public officials and damage to country’s relations with other countries need to be seen in relationship with public interest.”

Rehmat explains public interest even further, “The no-harm principle determines the nature of exemption. Even then, in the context of access to information, no exemption comes with absolutes. All exemptions, however limited, must come qualified — the right to know is premised on the assurance of utility.” He says the information that cannot be used “for the benefit of public is merely a restriction designed to obfuscate, not empower”.

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