This statement was originally published on article19.org on 26 November 2015.
The 1990 Constitution of Nepal recognised the right of citizens to demand and obtain information held by public agencies on any matter of public importance. This was repeated in the Interim Constitution of 2007[i]. Article 27 guarantees every citizen the right to seek and receive information on matters of their interest or of public interest, unless secrecy of information should be protected by law. A serious limiting factor in this provision which is at odds with international standards is the fact that only citizens are guaranteed this right.[ii] The most recently available version of the Draft Constitution currently being considered by the Constituent Assembly includes the right but again limits access to citizens.[iii]
Right to Information Act
Despite the constitutional guarantee, it took almost two decades for specific RTI legislation to be adopted in Nepal. The 1993 government draft of the Right to Information Act was rejected by the parliament following opposition from stakeholders, who feared the draft would institute a regime of secrecy rather than transparency. After the Interim Constitution was passed, the government formed a taskforce in 2007 to draft a right to information bill. After enormous efforts from stakeholders and civil society to improve the draft, the Right to Information Act (RTI Act)[iv] was enacted on 21 July 2007 and came into force on 20 August 2007. In 2009, the Right to Information Rules[v] were adopted, detailing appeal procedure before the National Information Commission and regulating its competencies, structure and functioning.
Provisions of the RTI legislation
The purpose of the RTI Act as defined in the Preamble is to make the functions of the state open, transparent, responsible and accountable to citizens in accordance with the democratic system. There is a presumption in favour of openness in the provision of the Act that states that access to information may only be restricted with an appropriate and adequate reason. The RTI Act incorporates a serious limitation to free access to information by requiring the requesters to state a reason for their information request. Another limiting provision stipulates that the individual may not “misuse” the information by using it for different purposes than have been stated.[vi] In case of a suspected “misuse”, the authority submits a complaint to the Information Commission as prescribed by the Right to Information Rules (Section 31).
Only citizens may request information in accordance with the RTI Act. The Act applies to all public agencies, covering constitutional statutory bodies, agencies performing public services and government-funded or controlled agencies. It also covers political parties and NGOs, funded by the government of Nepal or foreign governments and international organisations. “Information” is defined as any written document, material or information related to the functions, proceedings or decision of public importance made or to be made by public agencies.
The Right to Information Act 2007, Section 5, and Rules 2009 require bodies to disclose 20 types of different information proactively, including the obligation to publish essential information about each body, its functions, services, decision-making processes, details about the Chief and Information Officer and financial information about the body. The information must be updated every three months.
DISCLOSURE UPON REQUEST
One of the problematic issues with the RTI Act is that it does not regulate the procedure for requesting information, although the absence of such rules has been interpreted as meaning that the request may be submitted in any form of communication.[vii] The content of the request, except for the requirement to state a reason for asking for information, is also not regulated, but should be discerned from various provisions.The body must comply with the requester's preference about the form of the information sought or another appropriate format if there is danger that information would be damaged, destroyed or spoilt.
Each public body must appoint an Information Officer who will be responsible for dealing with information requests. The Officer has an obligation to make the citizens' access to information simple and easy, but there is no provision on providing assistance to requesters or any rules on dealing with unclear or incomplete requests.[viii] If the authority is not in possession of information sought, it is required to notify the requester, but it has no obligation to transfer the request to another competent body.
Information should be provided immediately. If this is impossible, the body shall instantly notify the requester and decide upon the request in 15 days, except when security of life is at stake and the deadline in such a case is 24 hours. There are no rules on extensions.
The body may charge fees for obtaining information which are, in principle, limited to the actual cost of providing information. The first 10 pages of A4 -size paper information are free of cost as per Section 4.2 of Rules. There is a right to complain in case of unreasonable charges.
A public body may only invoke the statutory exemptions if there is an appropriate and adequate reason. The act provides five categories of exemptions that may justify a refusal to disclose information. The list includes national security, investigation and prosecution of crimes, economic and other interests, intellectual property and professional secrets; harmonious relations among casts and communities; individual privacy, security, life, property or health of a person. Most of the exceptions are subject to a harm test (which varies in strictness), but there is no public interest override.[ix]
The Act contains a severability clause, whereby an information officer must provide partial access to information if it contains exempt information and information that is accessible under the law.
The right of an individual to be informed of the reasons for a refusal is not expressly provided in the Act. However, the Act stipulates that reasons for refusal ought to be explained when the requester complains to the Chief (head) of the authority via internal appeal.
The requester may appeal the refusal decision, but the first step is through internal channels: the requester must ask the chief of the authority for reconsideration of the decision. In case of an unsatisfactory reply, the appellant may complain to the National Information Commission (NIC). The NIC is an independent oversight body, composed of a Chief Information Commissioner and two Information Commissioners (selected with gender balance). The Commissioners are appointed for five years by the government at the recommendation of a special committee, where one of the three members is a civil society representative. The NIC hears appeals against various violations of the RTI Act and may issue orders, instructions, decisions and recommendations, including ordering structural changes. It has the power to inspect all relevant documents and it is also competent to declassify documents. The Act also provides for a basis for compensation claims in cases harm or loss occurred for failing to provide information.
The RTI Act imposes stiff sanctions against the chief of the public agency or information officer for withholding information without a valid reason, providing partial and wrong information and for destroying information. The NIC's decision may be appealed before the Appellate Court for decisions under Section 32.
PUBLICATION / REPORTING MECHANISMS / PROMOTIONAL MEASURES
The Information Officers and the NIC are in charge with promotional activities. The RTI Act sets out a number of promotional activities of the NIC: it recommends the government and other bodies on the promotional measures and it may issue orders for the bodies on the promotion of the right to information, such as publication of certain information online. The NIC reports annually on its activities to the parliament through the prime minister and makes available the annual report for the public.
Implementation of the RTI legislation
According to the NIC, civil society organisations and experts, the implementation of the RTI Act has been weak and largely inadequate.[x] One of the main reasons for this is the lack of awareness by the public about their right to information and the lack of awareness and well-trained and competent human resources in public agencies.[xi] The limited number of requests and small RTI focused organisations have had limited impact on the level of awareness among public bodies about their statutory obligations. Nevertheless, there is a growing demand from civil society groups for a proper implementation of the Act[xii] and one study showed that the awareness of the RTI legislation in Nepal is higher than in many other South Asian countries.[xiii] The implementation of provisions on proactive disclosure has also been weak and none of the surveyed public authorities published all required information on their respective websites.[xiv] A lack of efforts to proactively disseminate information of public importance, especially in emergency situations, was visible in the aftermath of the deadly earthquake that Nepal endured in April 2015.[xv]
A large proportion of public bodies have failed to appoint information officers as required under the law. Only about 200 of 9,000 government bodies have designated an officer. Problems with applying the exemptions have also been reported, namely that public bodies often refer to the exemptions laid down in special laws to deny access to information, such as the Income Tax Act, Competition Promotion and Market Protection Act, Revenue Leakage (Investigation and Control) Act, Civil Service Rules and others.[xvi] The overall lack of capacity of public bodies also hinders implementation.[xvii] A key demand of civil society groups is to revise Article 37 to ensure that the RTI Act overrides other laws.
While the NIC has the power to issue binding decisions and is tasked with conducting promotional activities, it is largely considered as under-staffed, under-resourced and in general lacking institutional capability and expert knowledge.[xviii] The NIC has no actual powers to enforce its decisions or monitor their implementation.[xix] On the other hand, there is a welcome provision on compensation, which the requesters may claim in case they suffered damages or incurred loss. A lack of a “nodal agency”, a central body responsible for monitoring and enforcing compliance, has been identified as a factor that limits the success of implementation of the law.[xx]
STATE SECRETS ACT
In Nepal, there is no separate act regulating state secrets and classified information for the protection of national interests. Such provisions are part of the RTI Act itself, which introduces a classification procedure under Article 27. The provisions on classification are not limited only to state secrets, but extend to all exemptions from free access laid down in the RTI Act. The classification committee is charged with classifying information for up to 30 years and the decision to classify information is subject to appeal. Regular reviews should be held every 10 years to ascertain whether information needs to be kept confidential. This system of a priori classification, in contrast with ad hoc assessment in publicity of information, has been criticised particularly because such a classification scheme does not allow for the balancing of different interests on a case-by-case basis. In December 2011, a government committee proposed procedures on classification and created new secrets for 24 broad categories and 116 types of information, and allowed the Cabinet to classify any information. The proposal was strongly opposed by civil society and stayed by the Supreme Court in 2012 following a lawsuit filed by the Democratic Lawyers´ Association.
PROTECTION OF WHISTLEBLOWERS
The RTI Act includes provisions on the protection of whistleblowing.[xxi] It provides that whistleblowing is not only a right, but an obligation of public servants: they are required to provide information on on-going or probable corruption or irregularities. The recipient of such information must protect the whistleblower's identity and the whistleblower should not suffer any detriment for revealing information, such as sanctions in employment, or criminal and civil liability. If punished, the whistleblower may seek compensation and reversal of the punishment.
ENVIRONMENTAL PROTECTION LEGISLATION
The Interim Constitution of 2007 imposes an obligation on the state to increase awareness of the public about environmental cleanliness. However, the Environment Protection Act of 1997[xxii] does not include many transparency provisions; it only stipulates that the public has the right to copy the Environmental Impact Assessment report in order to be able to comment on it. Nepal scored poorly in the Transparency and Participation sections of the Environmental Democracy Index of 2014[xxiii] due to the lack of a system for proactive transparency measures for publishing environmental information.
Nepal has signed and ratified the ICCPR and the UNCAC.[xxiv]
With regard to multi-stakeholder initiatives, Nepal had joined the ADB/OECD Anti-Corruption Initiative for Asia-Pacific[xxv] and OECD Busan Partnership for Effective Development Co-operation.[xxvi] Since 2012, Nepal has been a partner country in the International Aid Transparency Initiative (IATI) Steering Committee.[xxvii] The Annual Report of IATI for 2014 described Nepal's Aid Management Platform as significantly contributing to aid transparency in the country.[xxviii]
Country report: The right to information in Nepal
This statement was originally published on article19.org on 26 November 2015.