Special Order Issued by Chief Information Commissioner Mr. Krishna Hari Baskota and Information Commissioner Mr. Kiran Pokhrel of National
Information Commission on 17.03.2015
A Special Order has been issued to all ministries and central level agencies as regards to updating and regularly disclosing the information pursuant to the Section 5 (3) of the Right to Information Act, 2007 (the Act) and the Rule 3 of the Right to Information Regulation 2008 (the Regulation), designating Information Officers as stated by the Section 6 of the Act and sending reports concerning the receipt of applications seeking information, the actions taken thereon by itself and the entities under its regime to the National Information Commission (the Commission).
Background :
The Article 27 of the Fundamental Rights under Part 3 of the Interim Constitution of Nepal, 2007, has made constitutional provision to provide all citizens right to seek and get information of personal or in the matter of public interest. It is the foremost duty of all to abide by the Constitution as it is regarded as the basic law of the land. In the global perspective, right to information is taken as a crucial indicator to measure the effectual of democracy. The Act has been promulgated to ensure the basic tenets of democracy, like good governance, transparency, accountable governing system, freedom of speech and press and empowerment of citizens, which is enshrined in the spirit of the Constitution. The Preamble of the Act states that the 'Legislature-Parliament' has enacted this Act with a view to make the functions of the sate open and transparent in accordance with the democratic system and to make responsible and accountable to the citizen; to make the access of citizens simple and easy to the information of public importance held in public body, and for the necessity to have legal provisions to protect the right of the citizen to be well-informed and to bring it into practice.
The Order requiring publish/disclose Pro-active Disclosure on Quarterly Basis :
The Sub-section (2) of the Section 3 of The Act provides for legal guarantee to all Nepalese citizens having access to information held by public bodies. In order to ascertain the proper implementation of the Act, the Section 5, Sub-section (1) of the Act makes it obligatory for every public authority to keep the information updated under its control. The Sub-section (3) of the Section also provides for enlisting and the publication of the information held by a public authority in respect of 13 areas (subjects). The Sub-section (4) stipulates that such publication be made in every three months. Further to this, the Regulation has also listed seven more areas (subjects) for pro-active disclosure, in addition to the subjects laid down by Sub-section (3) of the Section 5 of the Act. In this perspective, pursuant to Section 19 (d) of the Act, the Commission issues following orders to all public authorities in respect of the protection, promotion and exercise of right of citizen to information as their constitutional right:
a. Upon the request of the Secretary of the Commission to public entities vide his letter dated 22/01/2015 as regards to updating and making public the information of their control, the Commission has been informed by such entities that the request has been met. It is found that such information are made public effective from the 16th of July 2014 to 15th of January 2015 at the interval of every three months. In the same way, the public entities may disclose such information at the interval of every three months effective from January 16th to July 15 2015 and intimate the same to the Commission.
b. The provision of regular pro-active disclosure of information, pursuant to the Act and the Regulation, shall be required to follow in accordance to the proviso cited in (a) above from the Fiscal Year 2015/16 and thereafter.
c. The departments, regional and district offices under the public entities are also required to comply with the orders made under (a) and (b) above and intimate the same to the Commission.
2. Order pertaining to the Designation of Information Officers:
So as to realize the effective implementation of the legal guarantee to right of every Nepalese citizen to information held by public entities pursuant to the Sub-section (2) of the Section 3 of the Act, the Sub-section (1) of the Section 6 of the Act has made obligatory legal provision to designate Information Officer to facilitate dissemination of information under the jurisdiction of her/his entity. The Sub-section (2) of the same Section directs the Chief of a public entity to supply the information at its disposal to the Information Officer regularly. The Sub-section (3) of the same Section also espouses that a separate Information Section may be created with a view to ensure regular flow of information as per necessity. Similarly, a Nepalese citizen may seek information registering an application to the Information Officer stating the purpose of that deed, as per the Sub-section (1) of the Section 7. The Act (Sub-section (2) of the Section 7) also assigns responsibility to Information Officer that she/he shall supply information to the person in need instantly, if the nature of the information sought is of that nature; if not, the applicant shall be supplied within 15 days from the date of the receipt of application. Accordingly, Sub-section (3) of the same Section maintains that if the sought information may not be made available, the information seeker shall be informed of the same stating the appropriate reason; Sub-section (4) affirms that if information sought concerns the life of a person, it shall be supplied within 24 hours; Sub-section (6) establishes that if any possibility subsist that the source of information may be damaged or destroyed or spoilt if it is provided in the format as requested by the applicant, the Information Officer shall provide such information in an appropriate format with stating reason thereof; Sub-section (7) maintains that If any individual submits an application to study or observe the document, material or activity related with information, the Information Officer shall provide a reasonable time to the applicant for the study and observation of such document, material or activity; and Sub-section (8) is concerned with the application received by a public authority asking for an information which is not related to such Body, the Information Officer is obliged to notify the applicant immediately to this effect. In such a situation, without designating an Information Officer, without equipping her/him with all information and necessary resources to facilitate her/him to discharge her/his duty comfortably, peoples' constitutional right to information cannot be put into practice effectively. In this context, pursuant to the Section 19 (6) of the Act, following orders have been issued to all public authorities to arrange for the designation of Information Officers:
a. The Information Officer be designated if not yet done. In case of the Information Officer thus appointed is not taking charge of his responsibility for more than seven days for any reason, another Information Officer be assigned. The name, telephone no. and the photo of the Information Officer be put in the flex board and be placed it in the office making it visible to all stakeholders. The description of Information Officer be appeared in the front page of the official website along with her/his name plate in his room stating his designation as the Information Officer. Intimate the same to the Commission.
b. All information be in access to Information Officer that remains under the control of that authority. Adequate logistics and manpower be provided required by her/him. A separate budget be set aside to her/his access which could be used for the promotion of right to information. Intimate the same to the Commission.
c. The departments, regional and district offices under the public entities are also required to comply with the orders made under (a) and (b) above and intimate the same to the Commission.
The order relating to Updating the Description with regard to Information Sought, Disseminated and Denied:
The Sub-section (2) of the Section 3 of The Act provides for legal guarantee to all Nepalese citizens having access to information held by public authorities. The Section 4 of the Act spells out the responsibility of public entities for the effective implementation of the Act. Section 5 of the Act makes it obligatory for every public authority to keep the information under its control updated and publish it at the interval of every three months. Section 6 of the Act makes provision of the appointment of Information Officer in public entities with a view to furnish information sought by citizens. Likewise the Act has also made provisions of procedures obtaining the information (Section 7), fees to be paid for requesting for information (Section 8), procedure of lodging complaint (Section 9), provision of making appeal (Section 10) and the provision of punishment against holding back information without valid reason, refusal to information or not abiding by the decision or order of the Commission (Sub-sections (1), (2) and (5) respectively of the Section 32). It is evident that the objective of all these provisions of the Act implies in ensuring the effectual protection, promotion and implementation of the people's lawful right to information. In this context, the Act stands for the intention that all public authorities shall aspire for more information requests by the public so that they could make available the information as requested. The Rule 3 (b4) requires that the public authorities are liable to publicize the description of the information sought and given in the interval of every three months. Pursuant to the Section 19 (b) of the Act, the Commission issues following orders to all public authorities to enhance their initiative thereto complying with the legal provision to this effect:
a. The record of the applications filed or likely to be filed with that entity, account of the information provided or denial to providing information be furnished to the Information Commission on quarterly basis in the specified format.
b. The departments, regional and district offices under the public entities are also required to comply with the orders made under (a) above.
c. The integrated quarterly description of the entity and entities under its regime be sent to the Commission within the fifteen days of the completion of such period.