Understanding the Access to Information Bill, Kenya

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Access to information
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Have you ever requested or needed some information from government and they simply didn’t get back to you, couldn’t trace the information or simply said the information was classified? Fear no more, the Access to Information Act, which was recently signed by the President, cements your Constitutional Right to Information as a Kenyan.

 

Constitution

The Right to access to information is a fundamental right granted to all as under Chapter 4 of the Constitution. It may be limited indeed, (and sadly has been unfoundedly; especially by Government) however, it stands.

Intention of the law

This Act seeks to create a framework to facilitate access to information held by private bodies and promote routine and systematic information disclosure by both public service and private service.

Key terms to note;

Electronic record – a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium;

Information – all records held by a public entity, regardless of the form in which the information is stored, its source or the date of production;

Personal information – defined to include:

(a) Information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, age, physical, psychological or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;

This clearly seeks to protect unauthorized access to such information that would/could inevitably lead to discrimination from accessing some opportunities.

(b) Information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

(c) Any identifying number, symbol or other particular assigned to the individual; Meaning your ID Number, Passport Number, NHIF/NSSF, KRA PIN, perhaps even your academic entity registration number to ensure you actually were a student there

(d) The fingerprints, blood type, address, telephone or other contact details of the individual;

(e) A person’s opinion or views over another person;

(f) Correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

Kindly note this would exclude public officers communication as such information would form part of the public record, yes including email communique

Private Body – any private entity or non-state actor that either:

(a) receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources);

or (b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right;

The question of ‘coercing’ private entities to release information was a hot potato during ICT Policy discussions especially because of the vagueness of certain statements. The Act now clearly stipulates that such information must relate to the aforementioned situations and there must be due process followed.

Public record includes any writing containing information relating to the conduct of the public’s business, prepared, owned, used or retained by .a public entity regardless of physical form or characteristics;

Right to Information

Every citizen has a right to access information and it may not be affected by what the public entity’s beliefs are as to the person’s reasons for seeking access. Access to information of a public entity or private body shall be provided expeditiously and inexpensively. Ideally, public service access should be free; however the entity may charge; the costs must be inexpensive (Though the term inexpensive may not be defined in Statute I believe the Reasonable man test would be applied, to mean, considering certain standards, what would be reasonable to an ordinary person.)

Proactive Disclosure

The Act provides for ease of access by Public Entities through annual published statements including: powers and duties of its officers and employees,(Cases where impersonation of State officers occurs), procedure followed in the decision making process, channels of supervision and accountability; salary scales of its officers by grade; the norms set by it for the discharge of functions.

Government Business

This particularly caught my eye, that upon signing any contract, the agency shall publish on its website (This signifies an intention and perhaps obligation for all agencies to have sites. Remember as proposed by the ICT Policy, they should be .go.ke) or through other suitable means.

The required particulars are:

  • The public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;
  • The contract sum;
  • The name of the provider, contractor or individual to whom the contract has been granted; and
  • The periods within which the contract shall be completed.

(This section shall be operationalized in 12 months, so web developers, look out for calls from Government to develop sites, content development, web design, hosting, cloud based services, security systems and encryption etc.) Thank me later! 

Inclusivity

All information disseminated must be friendly for persons with disabilities, consider the local language and most effective method of communication in that local area. Also, the information shall be easily accessible and available; free or at subsidized cost taking into account the medium used.

Exempt Information

Information may be withheld however in these circumstances when disclosure of such information is likely to:

  1. Undermine the national security of Kenya i.e. the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests. (Such information is unequivocally highlighted to include military strategy, intelligence activities, foreign relations etc.
  2. Impede the due process of law or endanger the safety of life of any person. This will probably be seen in department of justice cases, to protect witnesses and informants.
  3. Involve the unwarranted invasion of the privacy of an individual – Both Access to Information and right to privacy are constitutional entitlements; there must be found a balance of each.
  4. Infringe on the commercial interests, including intellectual property rights i.e. Trademarks, Copyright, Patents, Utility models, industrial designs.
  5. Damage a public entity’s position in any actual or contemplated legal proceedings – Entities are persons – legalese, in English, they’re legal persons that can act, make decisions, sue and be sued. It would thus be prejudicial to them if important information in support of their case is to released, ‘leaked’ or compulsorily acquired.

Public Interest

This information may not be protected however, where the public interest in disclosure outweighs the harm to protected interests. 

Time Lapse

Information is presumed not to be exempt if it has been held for a period exceeding thirty years. 

Criminal Liability

Any person who discloses exempt information in contravention of the Act commits an offence and would be held liable.

Process

Make a request to the Chief Executive Officer or a delegated person. The Entity has an allowance to creatively determine a suitable form for use. This may even be through the info@__.go.ke email relevantly addressed. If the information sought concerns the life or liberty of a person, the information shall be provided within forty-eight hours.

Redress

What if you request for information, it’s denied or you’re given such meagre information? There is a provision for review by the Commission of Administrative Justice if access is denied, if information is in redacted form i.e. excluding the sensitive information, if too expensive, or if they discriminately select whom to grant access to.

Digitization of information

Government agencies are now obligated to computerize their records and information management systems in order to facilitate more efficient access to information. (This should be done within 3 years).

Consequential amendments

The law will inevitably affect prior existing laws, including the Official Secrets Act. A subsequent alteration will have the effect of repealing the provision of law which makes criminal actions such as accessing or taking photographs of prohibited places, as well as granting access or giving information believed to be privileged by State officers.

Conclusion

The Bill is borne of the realization that access to information held by the Government and public institutions is crucial for the promotion of democracy and good governance.

This is a definite win for all Kenyans as our government seeks to grant us quality Public Service delivery.

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