Business Daily writer David Herbling discussed the Access to Information Act and its implications with acting Ombudsman Regina Mwatha. Here are excerpts from the interview.
What is the Access to Information Act?
It is an Act of Parliament which gives effect to the right of access to information under Article 35 of the Constitution. It obligates public entities and certain private bodies to facilitate access to information held by them. The Act came into force on September 21, 2016.
Who is an information access officer?
This is any officer of a public entity or private body who is the focal person in the implementation of access to information in accordance with the Act. By dint of Section 7 of the Act, a CEO of a public entity is the information access officer and may delegate this responsibility to any other officer.
The officer receives requests for access to information, develops ways of assisting applicants and processes applications for access to information within set timelines under the Act.
By which date should agencies have appointed the officer?
Pursuant to section 7(1) of the Act, every CEO of a public entity and private body became the information access officer upon the entry into force of the Act on September 21, 2016.
What are the specific obligations on public entities and private bodies in relation to the Act?
The main obligations are: ensure proactive disclosure of information held by them; process applications for access within set timelines at reasonable cost (if any); give notification to the designated officer; and correct information which is out of date, inaccurate or incomplete.
Others are; keep and maintain accurate, authentic and credible records; computerise records and information management systems within three years from the date of commencement of the Act in order to facilitate more efficient access to information; submit reports to the Commission on Administrative Justice on the implementation of the Act; and co-operate with the commission in the implementation of the Act.
What are the charges?
The cost for access to information must be reasonable. There is no fee for submission of an application or inspection of documents. However, reasonable fees will be charged for photocopying of the required information and supplying them to the applicant.
Is there a standard application form to apply for information?
Currently there is none, but it will be developed. However, no request can be rejected for the sole reason that a standard form was not used.
What are the timelines for applying for information, time for agencies to review, feedback, appeal?
Once an application has been made, the public entity or private body has 21 days to provide feedback. This may be extended once for 14 days in special cases. However, where a request concerns the liberty or life of a person, feedback must be provided within 48 hours.
When will regulations be gazetted providing the specifics of this new law?
The development of regulations under the Act requires a multi-agency approach, mainly involving the Cabinet secretary for ICT, the Commission on Administrative Justice, the Chief Justice and the public. The process has already started and gazettement will be done once it is completed.
What is the role of the commission under the Act?
It is to oversee and enforce the right to access to information. It is worth noting that the commission has already designated one of its commissioners, Saadia Mohamed, as the Access to Information Commissioner.
Has the Ombudsman begun awareness campaigns on this law?
Yes, we have begun implementing a number of public awareness strategies and activities. We have, for instance, published information on the Act in newspapers, mainstreamed content on access to information in our outreach and advocacy programmes as well as training of public officers. We are currently developing IEC materials and also simplifying the Act for public consumption.
Has the Ombudsman benchmarked best practices with countries which have robust access to information laws?
Yes, we have been undertaking benchmarking for best practices based on desk review. We also benchmarked with Rwanda and are looking forward to adopting best practices from other jurisdictions.
How is the Act relevant to the fight against impunity in Kenya?
The Act advances the constitutional principles of accountability, transparency, public participation and efficiency in service delivery, which are the hallmarks of good governance.
It opens up the government and trust in public administration as well as fostering better understanding of decision making by the government. It provides for protection of disclosure of information relating to violations of the law, corruption, abuse of public office, mismanagement of public funds and conflict of interest, among others. To this end, the Act provides a critical role in the fight against impunity.
What remedies can the commission give under the Act?
They include an order for: release of any information withheld unlawfully, payment of compensation, and correction of any record of personal information and any other lawful remedy.
What is the legal status of the commission’s decisions under the Act?
They are binding on national and county governments and may be executed in the same manner as those of the High Court. A person who is aggrieved by the decision of the commission can appeal to the High Court.
Does the Act provide for protection of a person who discloses information in public interest?
Yes, the Act provides that no person shall be penalised for disclosure of any information in good faith to a law enforcement agency or any other appropriate public entity.
This includes information relating to violations of the law, including human rights; mismanagement of funds; corruption; conflict of interest; abuse of public office; and dangers of public health, safety and environment.
What are the offences for violation of the Act?
The Act creates a number of offences for violations of its provisions. A relevant private body convicted of any offence under the Act may be debarred from entering into any future contract with the government.
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