Right to Information Act and applicability in Sri Lanka | Daily News

Right to Information Act and applicability in Sri Lanka

The Right to Information Act was introduced in Sri Lanka by Act No 12 of 2016 and certified by the Speaker on August 4, 2016.

The Right of Information Act by it’s name and Preamble gives the right for citizens to access the information of affairs of several organs and institutions of the government in public nature subject to certain restrictions referred to the Act.

In consequence of the recent political trends and changes in Sri Lanka, there were wide discussions among the legal and political fraternities and the public about transparency and accountability of public authorities as they are established for the sake of public benefit utilising public funds, in the circumstances this Act was passed by Parliament to introduce a mechanism enabling to access the information of the affairs of public authorities.

The Preamble of the Act says as follows:

“WHEREAS the Constitution guarantees the right of access to information in Article 14A thereof and there exists a need to foster a culture of transparency and accountability in public authorities by giving effect to the right of access to information and thereby promote a society in which the people of Sri Lanka would be able to more fully participate in public life through combating corruption and promoting accountability and good governance.”

As per Section 3 of the Act, Subject to the provisions of section 5 of this Act, every citizen shall have a right of access to information which is in the possession, custody or control of a public authority. Therefore for convenient reference, there are three ingredients as referred the act namely as Citizen, Information and Public Authority.

Section 4 of the Act submits that the provisions of the Act shall prevail over the other written laws as per this provision, any public authority cannot refuse to furnish the information, even if any other written law prohibits or restricts to provide information.

As per Section 43 of the Act broader interpretation is given to the main three ingredients of the Act.

CITIZEN

“Citizen” includes a body whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens”

INFORMATION

“Information” includes any material which is recorded in, in any form including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, correspondence, memorandum, draft legislation, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microfilm, sound recording, video tape, machine readable record, computer records and other documentary material, regardless of its physical form or character and any copy thereof”

PUBLIC AUTHORITY

“Public authority” means – ministries , any body or office created or established by or under the Constitution or any written law or statute of a Provincial Council, Government Department, public corporations , public company incorporated under the Companies Act, No. 7 of 2007, a local authority, a private entity or organisation which is carrying out a statutory or public function with the government, institutions established or created by a Provincial Council, non-governmental organisations that are substantially funded by the government or any department or other authority, international organisation, rendering a service to the public, higher educational institutions including private universities and professional institutions which are established, recognised or licensed under any written law or funded wholly or partly by the State, private educational institutions including institutions offering vocational or technical education which are established, recognised or licensed under any written law or funded, wholly or partly, by the State and all courts, tribunals and institutions created and established for the administration of justice;

[this is not the quotation of the Section for reference please see Section 43 of the Act]

Section 5 of the Act imposes the instances when right to access of information may be denied. Such instances are if the information is personal or if it causes unwarranted invasion of privacy of persons, the public authority is not liable to disclose the such information without the written consent of the person of whom the information is related.

Other such restrictions imposed are mainly prejudice to the defence of the State or its territorial integrity or national security, international agreements or obligations of the state under international law, obtained in confidence, prejudice to the economy, prematurely decisions to change or continue government economic or financial policies,commercial confidence, trade secrets or intellectual property, protected under the Intellectual Property Act, No. 36 of 2003,

Some information which cannot be disclosed among are medical records relating to any person, any communication, between a professional and a public authority, communication between the Attorney General or any officer assisting the Attorney , information would cause prejudice to the prevention or detection of any crime , information would be in contempt of court or prejudicial to the maintenance of the authority and impartiality of the judiciary, information would infringe the privileges of Parliament or of a Provincial Council.

If any public authority is satisfied that larger public interest warrants the disclosure of such information, citizens are entitled to obtain such information irrespective of the restrictions.

Under Section 7 of the Act it is the duty of public authorities to maintain and preserve information which would facilitate the right of access to the information and in this affairs digital and modern technology can be used.

Under section 8 of the Act is the duty of the Minister in Charge to publish a report of the affairs of public authorities biannually.

Under Section 23 of the Act every public authority should appoint information officers to enable the access of information to the Public and designated officers to entertain appeals, citizens can make request in writing to the information officer, in case such officer is not appointed , the officer in charge of the public authority acts as the Information officer.

In case of failure to make the request in writing , it is possible to make a request orally to obtain the information, if the request is made orally, it is the duty of the public officer to record the said request in writing on behalf of the citizen.

It such request is accepted it is the duty of public authority to provide information

If, the public authority refuses to give information it is a duty to inform such refusal to the citizen within 14 days and citizens are entitled make appeal to designated officer who consider appeals.

If the designated officers' decision to refuse information, citizens can prefer an appeal to the Right of Information Commission established under section 11 of the Act and the Commission consists of five person appointed by the President upon recommendation of the Constitutional Council.

The Commission members consist of an Attorney-at-Law recommended by the Bar Association of Sri Lanka, media persons and civil society members.

Under Section 34 of the Act, an appeal can be preferred to Court of Appeal against the decision of the Right of Information Commission.

Under Section 38 of the Act, if the information officer or designated officer refuses to give information willfully, it becomes a matter to be inquired against the such officer by the relevant disciplinary authority and in that event, the disciplinary authority shall inform the Right of Information Commission about actions taken in that regard.

as far as the rights of citizens are concerned, introduction of the Right to Information Act is a welcome event as it provides the mechanism to access the information related to affairs of public nature and it enhances the fundamental rights of citizens guaranteed under Article 14 (1) of the constitution.

In the case of Dinesh Trivedi Vs Union of India, Ahmed C.J stated as follows;

“ In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government, which having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However like all others, even this right has recognized limitations, it is by no means absolute”

In the Sri Lankan context, public awareness, activities of citizens and activities of civil Organisations are important to achieve the goals and intentions of the Act. In these circumstances, the public can have legal assistance from institutes such as the Legal Aid Commission, Bar Association of Sri Lanka or lawyers.

In any event as far as the rights of the citizens to access information of public authorities are concerned, it is pertinent to say that the introduction of the right to information is a mile stone of the development of legal system in Sri Lanka.

All public authorities are run on were WHEREAS the Constitution guarantees the right of access to information in Article 14A thereof and there exists a need to foster a culture of transparency and accountability in public authorities by giving effect to the right of access to information and thereby promote a society in which the people of Sri Lanka would be able to more fully participate in public life through combating corruption and promoting accountability and good governance. 


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