[kictanet] Day 4: What Data should be exempted from the Act (access) &

[joseph kihanya]

Dear All,

Thank you for all your comments over the last 3 days.

Today's theme is veru crucial in that FOI as a right is limited for certain public policy/interest considerations in almost all jurisdictions.The question is how many(how far should they go) of these restrictions should we have and why?

The list under the policy are;

 • National security
• Privacy
• Confidentiality
• Public safety
• Decision –making processes


Article 19 has under this heading in its Principles of FOI said;

PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS 

Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests 

All individual requests for information from public bodies should be met unless the public body can show that the information falls within the scope of the limited regime of exceptions.

 A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test. 
The three-part test 
• the information must relate to a legitimate aim listed in the law; 
• disclosure must threaten to cause substantial harm to that aim; and 
• the harm to the aim must be greater than the public interest in having the information. 

No public bodies should be completely excluded from the ambit of the law, even if the majority of their functions fall within the zone of exceptions. This applies to all branches of government (that is, the executive, legislative and judicial branches) as well as to all  

A complete list of the legitimate aims which may justify non-disclosure should be provided in the law. This list should include only interests which constitute legitimate grounds for refusing to disclose documents and should be limited to matters such as;
 
law enforcement, 
privacy, 
national security, 
commercial and other confidentiality, 
public or individual safety, 
and the effectiveness and integrity of government decision-making processes. 

Exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest. They should be based on the content, rather than the type, of the document. To meet this standard exceptions should, where relevant, be time-limited. For example, the justification for classifying information on the basis of national security may well disappear after a specific national security threat subsides. 

Refusals must meet a substantial harm test 

It is not sufficient that information simply fall within the scope of a legitimate aim listed in the law. The public body must also show that the disclosure of the information would cause substantial harm to that legitimate aim. In some cases, disclosure may benefit as well as harm the aim. For example, the exposure of corruption in the military may at first sight appear to weaken national defence but actually, over time, help to eliminate the corruption and strengthen the armed forces. For non-disclosure to be legitimate in such cases, the net effect of disclosure must be to cause substantial harm to the aim. 

Overriding public interest
 
Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.  


Let us have your views

Kihanya


 
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