Purvaiz Musharraf
General/Chief Executive
Prime Minister`s Secretariat
Constitution Avenue
Islamabad
Pakistan
26 September 2000
Your Excellency,
Re: Pakistan Freedom of Information Ordinance 2000
The International Press Institute (IPI), the global network of editors and media executives, has been provided with a copy of the proposed Pakistan Freedom of Information Ordinance 2000 (FOI Ordinance). After a detailed examination of the FOI Ordinance, please find enclosed our interim report on the subject which sets out IPI’s recommendations on how the FOI Ordinance may be amended to meet with internationally accepted standards.
With regard to the substance of the FOI Ordinance, IPI believes that there are fundamental difficulties inherent in the current text. Perhaps the most visible flaw is the failure to ensure that the FOI Ordinance overrides other Ordinances which impinge on access to information. Without a parallel commitment to amend existing Ordinances or allow for derogation, the present FOI Ordinance will have little chance of success. In consequence, the public in Pakistan will be denied a true and proper freedom of information act that would enhance Pakistan society and create open and honest government.
In addition, there are other essential elements missing from the FOI Ordinance. These missing elements include, among others, the power to penalise officials who seek to obstruct access or who wilfully destroy records, the lack of an obligation to publish and the absence of a “harm test” and a “public interest override”. All of these missing sections will actively inhibit the public’s access to information and therefore contradict the very reason for which the FOI Ordinance was originally drafted.
With the above in mind, IPI invites Your Excellency to read the interim report and amend the FOI Ordinance accordingly. By doing so, Your Excellency will be bringing the Freedom of Information Ordinance into line with other Freedom of Information legislation around the world.
In view of the flaws within the FOI Ordinance, IPI is willing to work closely with the ruling authorities, and other interested parties in Pakistan, to develop a Freedom of Information Ordinance that meets with international standards. IPI has extensive experience of working with both the media and governments to advance the cause of press freedom and this experience may well be of help in creating a successful FOI Ordinance.
An important element of IPI’s work is the use of seminars in certain regions to promote discussion and understanding. In the past, these seminars have been extremely successful at bringing together interested parties, who often hold disparate views, and unifying them to create harmonious working relationships that have furthered press freedom. With this in mind, IPI proposes that Your Excellency holds a seminar on the subject of freedom of information and invites interested parties to discuss the issue.
I thank you for your attention.
Best regards,
Johann P. Fritz
Director
1. Introduction
The International Press Institute (IPI), the global network of editors and journalists, has been asked to examine the draft Freedom of Information Ordinance, 2000 (FOI Ordinance) in light of international standards regarding freedom of information and whether the intended ordinance may have consequences for freedom of the media.
2. Brief History
The current FOI Ordinance was drafted under the Proclamation of Emergency of 14 October 1999 and is empowered under the Provisional Constitution Order, No’s 1 and 9 of 1999.
A brief examination of the history of freedom of information in Pakistan reveals that this is the second draft ordinance on the issue in the last three years. In 1997, a committee including the present Federal Information Minister, Javed Jabbar, Punjab Information Minister, Shafqat Mahmood, and chaired by the then Minister of Justice, Irshad Haqqani, drafted a freedom of information ordinance. The ordinance was believed to contain serious flaws and was roundly criticised by media organisations.
Since 1997, the proposal for a freedom of information ordinance has been held in abeyance until this year when the present FOI Ordinance was drafted and presented to organisations inside Pakistan for their review.
3. Purpose of a Freedom of Information Act
A freedom of information act provides members of the public with a right of access to information held by the government and bodies related to the government. The laws relating to access are subject to a number of exceptions that are enforced by an independent body with the power to order disclosure, irrespective of the wishes of the government.
Effective freedom of information legislation furthers public discussion, promotes open and honest government and allows the media to scrutinise and investigate the actions of the government. Furthermore, the openness created by a freedom of information act empowers individual members of society and allows them to play a greater role in policy making.
4. Overview of the Freedom of Information Ordinance 2000
An examination of the FOI Ordinance discloses that it has been separated into a number of sections concerning definitions, declaration of public record, records excluded, designation of official, functions, applying for information, disposing of applications, the Mohtasib (Ombudsman) and the relationship of the Ordinance to other Orders. Finally, there is a section concerning the power of the authorities to frame further rules on the subject of freedom of information.
The FOI Ordinance provides for the creation of a designated official for all departments and bodies of government who will make decisions at first instance on whether the application for information should be acceded to or rejected. Applications to the designated official must be considered and answered within 21 days. A refusal may be appealed to a Mohtasib (Ombudsman) within 30 days of the refusal. The Ombudsman will either affirm the decision of the designated official or invite them to provide the information or record to the applicant.
5. Sections
(a) Definition of Citizens
In section 7 (1), the FOI Ordinance makes reference to the phrase “citizens of Pakistan”; IPI is concerned that this definition may be used to exclude certain members of Pakistan society from applying for information under the Ordinance. It would appear that the phrase excludes those who are resident in Pakistan but do not have citizenship. In IPI’s view the definition of citizen should be widened to include anybody resident in Pakistan or anybody who has a right to reside in the country.
IPI believes that limitations on which individuals can have access to records or information can be avoided by a statement in the prologue of the Ordinance by including a phrase which states:
“The Freedom of Information Ordinance shall apply to every person present in the country without limitation.”
Such a definition should include Non-Governmental Organisations and other interested organisations that work in Pakistan.
(b) Declaration of Public Record
Under the FOI Ordinance the record of all public offices is declared to be the public record:
“instructions, policies and guidelines… records relating to sale, purchase, lease, mortgage, acquisition or transfer in any other manner of properties both movable and immovable… record pertaining to approval, consents, permissions, concession, benefits, privileges, licenses, contracts, permits, agreements, or any other advantages…”
Although difficult to determine from the above definition, it would appear that the thrust of the present FOI Ordinance is directed at the disclosure of documents relating to property and other relatively low-grade information connected to local government. IPI would like to see the FOI Ordinance widened to include a direction that the definition of public record includes
“all information held by the government or government body”.
(c) Definition of Public Office
Section 2 (d) of the FOI Ordinance, defines those parts of the state which will be subject to the FOI Ordinance. In relation to the definition it is extremely difficult to determine whether certain elements of the government fall within the boundaries of the Ordinance.
In view of this, the ruling authorities of Pakistan should ensure that the definition of Public office should be drafted to include the following:
(i) All federal government bodies.
(ii) All local or state bodies.
(iii) All bodies exercising public functions.
(iv) The security and intelligence services (although aspects of the work of these agencies should be protected, the work of the secret services may involve tasks that do not always fall within the restrictive scope of the secrecy laws).
(d) Definition of Record
According to section 2 (e) “record” is defined as:
“…drawings, computer records, photographs, microfilms, cinematograph films and audio visual recordings”.
Although this section appears to be an attempt at defining “record” as widely as possible, the phrase “regardless of form or medium” should be included to ensure that access is not excluded on the basis that the record or information fails to fall within the definition of section 2 (e).
(e) Exclusion on the Basis of Personal Privacy
Section 4 (f) states that a record should be excluded if the record relates to:
“…the personal privacy of any individual”
On the basis of this phrase, the FOI Ordinance should define what is meant by those documents that pertain to “personal privacy”. Such documents should be defined under the phrase “personal information”.
(f) Exclusion on Basis of Express or Implied Statement
Section 4 (g) goes on to states that a record should be excluded if the:
“record of private documents furnished to a public office [is provided] either on an express or implied condition that information contained in any such document shall not be disclosed to a third person.”
Although it is legitimate to include “personal privacy” this should accord with public standards and the “harm test” and “public interest override” should be applied to the question (see j. below).
Under the FOI Ordinance “third person” is not defined, so it is unclear whether this relates to individuals only or also concerns legal persons. To clarify this issue, “third person” should be defined in the FOI Ordinance.
Regarding the exclusion on the express or implied authority of an outside individual or body, IPI would like to see the “harm test” and “public interest override” applied to this procedure. In view of the text, it would appear that the notion of “implied consent” could be used by the body to exclude access.
(g) Type of Information Provided
Under the FOI Ordinance, the designated official must provide the applicant with either information or a true copy of the record. There is no definition of information within the Ordinance and this should be clarified to allow the supply of written answers by the officials. This is a vital aspect of freedom of information as it avoids the possibility that the designated official may evade passing the information to the applicant on the basis that they know the answer to the question, but due to the lax definition in the Ordinance need not supply the information because it is not in written form.
(h) Duty to Disclose
The FOI Ordinance fails to include a penalty for officials who do not disclose information to the public to which it has an entitlement. A failure to include a penalty relating to the wilful destruction of information or the obstruction of access to information will provide government officials with the incentive to destroy records or hinder access to them. It is therefore crucial to the success of any legislation, regarding freedom of information, that a penalty be included to penalise officials who are unwilling to release embarrassing or controversial information.
(i) Obligation to Publish Guidelines
One of the most important elements of any freedom of information law is the government’s commitment to advertising the existence of the freedom of information law and its willingness to publish guidelines on how the new legislation may be used by the public. Without the inclusion of this commitment the Ordinance is much reduced in value.
It is standard procedure for both the government and its departments to provide guidelines that set out the type of records held by each body and provide information to the public on the type of information that has been given out. The effect of this procedure is to provide the public with details of the types of information they have a right to under the Ordinance.
Under the current FOI Ordinance, there is no commitment on behalf of the ruling authorities to achieve this. As a result the act is flawed in that it has failed to fully appreciate the reason for which it was created. As a consequence, the public will be ill informed of its rights and unable to access the information that it desires.
(j) Definition of Classified, Harm Test and Public Interest Override
Under the FOI Ordinance there is no definition of the term “classified” (section 4 (e)). In view of this it is likely that the phrase is defined by another Ordinance, however, this is problematic as it means that the definition of “classified” may be so wide as to exclude all information under the present act. This is supported by section 10 that clearly states that the present act shall not derogate other laws. In IPI’s view this is an extremely important statement as it confirms that, in relation to other ordinances, the present ordinance will have no effect.
With this in mind, IPI would urge the Pakistan ruling authorities to include a definition of the phrase “classified” and/or redefine the phrase in other legislation so that it accords with the present Ordinance.
Another matter that concerns IPI is the failure of the Ordinance to include a “harm test” and “public interest override”.
On the basis of international standards, the ruling authorities should only be allowed to withhold information if they can prove that it would harm a specified interest, such as defence, security, law enforcement, commercial confidentiality or privacy. In addition, harm should not include any sense of embarrassment or inconvenience on the part of the official who may be forced to reveal the information. Furthermore, information cannot be withheld if it only “relates” to a sensitive matter and is not sensitive in itself.
All exemptions should also be subject to a public interest override that should be weighed against the harm caused by the release of the information. The public interest override applies to much of the legislation in other countries that is considered to meet international standards and it is IPI’s firm belief that this is an integral element of any legislation in this area.
As standard practice, the consideration of potential harm should be weighed in light of the public interest in having the record or document made public.
(k) Deadlines
According to section 8 (1), on receiving the application, the designated official shall supply the information, or provide a copy of the record, to the applicant within 21 days. IPI believes that the period of 21 days is too long for the supply of such information and records and would like to see a period of 14 days in substitution. Furthermore, the Ordinance should clarify whether the deadline is made up solely of working days or includes weekends and public holidays.
However, the insertion of a further deadline of perhaps seven days would also be compatible with international standards where the information or record to be supplied is of an exceptionally complex nature. Although, in such a situation, the designated official should write to the applicant explaining why the original date cannot be adhered to. IPI would also like to see the inclusion of a seven day deadline for writing to tell the applicant that the department or government body does not have the information required.
In addition, section 8 (2)(e) goes on to say that where the application for the information or record is rejected by the designated official he shall inform the applicant in writing within 21 days of the original application. Once again the period should be amended to 14 days and the designated official should be required to provide reasons in writing for the refusal of the application.
IPI feels that the amendment of the deadlines is essential to the success of the FOI Ordinance as any period of more than 15 days may be used to delay the entire procedure and hinder access.
(l) Costs
With regard to fees, IPI appreciates that in some circumstance there may be a need for a fee to be prescribed for the supply of the information or record, however, the Ordinance should clearly state that the fees should not be “prohibitive”. If this is not included the use of high fees may be applied in order to prevent the public’s access.
Where possible, IPI would like to see the following implemented in the Ordinance:
(i) Price differential between personal and commercial users;
(ii) Concerning inquiries relating to “public interest” the fees should be waived.
Furthermore, there should be no additional fees for applications to the Ombudsman.
(m) Mohtasib (Ombudsman)
According to the Ordinance, applicants may appeal to the Ombudsman if the designated official has refused the application. This must be done within 30 days of the last date of the prescribed time for the designated official’s reply to the applicant.
It is unclear from the text of the Ordinance whether the Ombudsman has the final say in whether the information or record should be given to the applicant. Furthermore, it does not say whether the Ombudsman can compel the designated official to provide the information or record.
Within this procedure, IPI is concerned that officials of the ruling authorities may be able to have the final say about rejection or compliance. In circumstances where a Minister of the ruling authorities is involved in the decision to reject the application, there should be recourse to a tribunal or the courts to consider the possibility that the Minister may have committed an error in judgement and has acted ultra vires.
(n) Procedure for Disposal of Applications
Section 8 (a) states that the application shall be rejected if:
“the application is not in the form as has been prescribed”.
The letter refusing the application should include advice on how the application may be rectified. IPI believes that the failure of the applicant to follow the correct procedure should not be a bar to the applicant receiving the information, nor should the designated official use the procedure to hinder or obstruct an application. Indeed, where possible, the designated official should amend the application in order to ensure that the correct procedures have been met.
Regarding procedures for applying in general, the procedures set up by the designated official should not be so bureaucratic that, in themselves, they represent a bar to the applicant obtaining the desired information.
(o) Derogation
Section 10 states that the Ordinance will not derogate other laws. In the view of IPI, this is perhaps the most damaging aspect of the FOI Ordinance. For all intents and purposes, if the Ordinance does not override other Ordinances then it is rendered toothless; a state of affairs that will have no effect in changing the present regulations and actively inhibit the dissemination of information. According to international standards, freedom of information laws should override other existing restrictions and the ruling authorities should amend existing Ordinances to bring them into line with the FOI
4. Conclusion
On examining the FOI Ordinance, IPI believes that the Ordinance is a lack-lustre attempt at providing a freedom of information law in Pakistan and displays little commitment on the part of the ruling authorities to practice open and honest government. In particular, IPI would highlight the failure of the ruling authorities to ensure that the FOI Ordinance overrides other Ordinances. Such a failure means that the Ordinance will be rendered powerless to uphold the rights of citizens to access information. IPI is also concerned at the absence of an obligation to publish details of the types of information held and advertise the existence of the FOI Ordinance.
In addition, the failure to include penalties against officials who seek to destroy records or obstruct, once again leaves the FOI Ordinance without the power to ensure that access is provided to the public. Furthermore, the lack of a “harm test” or “public interest override” presents serious problems and may also be used to hinder access. Therefore, in order for the FOI Ordinance to meet with accepted international standards, substantial amendments need to be undertaken.
5. Recommendations
IPI would make the following recommendations:
(1) The FOI Ordinance needs to be thoroughly revised in accordance with international standards on access to information.
(2) The FOI Ordinance should have the power to override other laws. Any laws conflicting with this FOI Ordinance should be amended to reflect this fact.
(3) The ruling authorities should draw together interested parties for a conference on the subject and use the results of the conference to re-draft the law. Thus ensuring that all aspects of the FOI Ordinance meet with international standards.
(4) The phrase “citizen” should be deleted and the following phrase inserted: “the Freedom of Information Ordinance shall apply to every person present in the country without limitation.”
(5) Section 3, the declaration of the public record, should be drafted as widely as possible and include: “all information held by the government or government body”
(6) The ruling authorities should ensure that the following are included in the definition of “public office”:
(i) All federal government bodies.
(ii) All local or state bodies.
(iii) All bodies exercising public functions.
(iv) The security and intelligence services (although aspects of the work of these agencies should be protected, the work of the secret services may involve tasks that do not always fall within the restrictive scope of the secrecy laws).
(7) The definition of “record” should include the following phrase: “regardless of form or medium”.
(8) Concerning “personal privacy”, the FOI Ordinance should include a definition of “personal information”.
(9) In section 4 (g), the phrase “third person” should be defined and the question of express or implied approval should be subject to the “harm test” and “public interest override”.
(10) “Information” should be defined in the Ordinance to allow for written questions.
(11) Both the “designated official” and the “Ombudsman” should be obliged to provide written reasons for the rejection of the application.
(12) A penalty should be included in the FOI Ordinance for wilful destruction of the record and obstruction of access.
(13) There should be a duty to publish guidelines and other information on the FOI Ordinance.
(14) The phrase “classified” should be defined under the FOI Ordinance.
(15) A “harm test” and “public interest override” should be included in the FOI Ordinance for the determination of whether the record should be released.
(16) The deadline for writing with reasons for rejection or providing record should be shortened to 14 days. A deadline of seven days should be included where the department or government body does not have the necessary record or information.
(17) Any fees charged should not be “prohibitive” and this phrase should be included in the text of the FOI Ordinance.
(18) The “Ombudsman” should have the power to compel the “designated official” to provide the relevant information and any involvement of a Minister should allow for an appeal on the basis that the Minister may have committed an error of judgement.
(19) Any letter refusing access due to a failure to follow the correct procedures should provide information on how the situation can be rectified and where possible a procedural failure should not be a bar to the provision of information.
AN ORDINANCE to provide for transparency and freedom of information.
WHEREAS it is expedient to provide for transparency and freedom of
information to ensure that the citizens of Pakistan have improved access to
public records and for the purpose to make the Federal Government more
accountable to its citizens, and for matters connected therewith or
incidental thereto;
AND WHEREAS the National Assembly and the Senate stand suspended in
pursuance of the Proclamation of Emergency of the fourteenth day of October,
1999 and the Provisional Constitution Order No.1 of 1999;
AND WHEREAS the President is satisfied that circumstances exist which render
it necessary to make immediate action;
Now, therefore, in pursuance of the proclamation of Emergency of the
fourteenth day of October, 1999, read with the Provisional Constitution
Order No. 1 of 1999, as well as Order No. 9 of 1999, and in exercise of all
powers enabling him in that behalf, the President is pleased to make and
promulgate the following Ordinance:
1. Short title, extent and commencement.
(1) This Ordinance may be called the Freedom of Information Ordinance, 2000.
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
2. Definitions.
In this Ordinance, unless there is anything repugnant to the subject or
context.
a) “designated official” means an official of a public office designated
under section 5
b) “Mohtasib” means the Wafaqi Mohtasib (Ombudsman) appointed under Article
3 of the Establishment of the office of the Wafaqi Mohtasib (Ombudsman)
Order, 1983 (P.O.No.1 of 1983).
c) “prescribed” means prescribed by rules made under this Ordinance;
d) “public office” means;
i) any Ministry, Division, department or office of the Federal Government;
ii) Secretariat of Majlis-e-Shoora (Parliament);
iii) any office of any Board, Commission, Council, or other body established
by, or under, a Federal law; and
iv) any office of a body which is owned or controlled by the Federal
Government or in which the Federal Government has a controlling share or
interest; and
e) “record” shall include drawings, computer records, photographs,
microfilms, cinematograph films and audio and video recordings.
3. Declaration of public record.
Subject to the provisions of section 4, the following record of all public
offices are hereby declared to be the public record, namely:
a) instructions, policies and guidelines;
b) record relating to sale, purchase, lease, mortgage ,acquisition or
transfer in any other manner of properties both movable and immovable;
c) record pertaining to approval, consents, permissions, concession,
benefits, privileges, licences, contracts, permits, agreements, or any other
advantages; and
d) final orders including decisions taken at all meetings.
4.Exclusion of certain records.
Nothing contained in section 3 shall apply to the following record of all
public offices, namely:
a) noting on the files;
b) minutes of meetings;
c) any interim orders;
d) record of the banking companies and financial institution relating to the
accounts of their customers;
e) record declared as classified under the policy made by the Federal
Government.
f) record relating to the personal privacy of any individual; and
g) record of private documents furnished to a public office either on an
express or implied condition that information contained in any such document
shall not be disclosed to a third person.
5. Designated official.
(1) The Federal Government may, within thirty days of the commencement of
this Ordinance, for every public office designate and official for the
purposes of this Ordinance.
(2) In case no such official has been designated or in the event of the
absence or non-availability of the designated official, the person in charge
of the public office shall be the designated official.
6. Functions of designated official.
Subject to the provisions of this Ordinance and the rules made there under
and the overall supervision and control of the Federal Government, the
designated official shall provide the information contained in any public
record or, as the case may be, a copy of any such record.
7. Applications for obtaining information, etc.
(1) Subject to sub-section (2) any citizen of Pakistan may make an
application to the designated official in the form as may be prescribed and
shall with his application, furnish such information and documents, pay such
fee and at such time as may be prescribed.
(2) Nothing contained in sub-section (1) shall apply to such public record
as has been published in the official Gazette or in the form of a book
offered for sale.
8. Procedure for disposal of applications.
(1) Subject to sub-section (2), on receiving an application under section 7,
the designated official shall, within twenty-one days of the receipt of
request, supply to the applicant the required information or, as the case
may be, a copy of any public record.
(2) In case the designated official is of the opinion that
(a) the application is not in the form as has been prescribed;
(b) the applicant has not furnished such information and documents or has
not paid such fee as has been prescribed;
(c) the applicant is not entitled to receive such information;
(d) the required information or, as the case may be, the required record
does not constitute a public record under section 3; or
(e) the required information or, as the case may be, the required record
constitutes a record which is excluded under section 4, he shall record his
decision in writing and the applicant shall be informed about such decision
within twenty-one days of the receipt of the application.
3) The information from, or the copy of, any public record supplied to the
applicant under sub-section (1), shall contain certificate at the foot
thereof that the information is correct or, as the case may be, the copy is
a true copy of such public record, and such certificate shall be dated and
signed by the designated official.
9. Recourse to the Mohtasib.
(1) If the applicant is not provided the information or copy of the record
declared public record under section 3 within the prescribed time or the
designated official refuses to give such information or, as the case may be,
copy of such record, on the ground that the applicant is not entitled to
receive such information or copy of such record, the applicant may, within
thirty days of the last date of the prescribed time for giving such
information or, as the case may be, copy of such record, or the
communication of the order of the designated official declining to give such
information or copy of such record, file a complaint with the Mohtasib.
(2) The Mohtasib may, after hearing the applicant and the designated
official, direct the designated official to give the information or, as the
case may be, the copy of the record or may reject the complaint.
10. Ordinance not to derogate other laws.
The provisions of this Ordinance shall be in addition to, and not in
derogation of, anything contained in any other law for the time being in
force.
11. Power to make rules.
(1) The Federal Government may, by notification in the Official Gazette,
make rules for carrying out the purposes of this ordinance.
(2) In particular and without prejudice to the generality of the foregoing
powers, such rules may provide for.
(a) the fee payable for obtaining information from, and copies of the public
record;
(b) the form of application for obtaining information from, and copies of,
the public record; and
(c) the form in which information from public record shall be furnished.
