Why Knowing Takes Precedence Over Not Knowing

On February 12, 2014, Bolo Bhi filed three Freedom of Information requests under the FOI 2002 Ordinance with the Ministry of Information Technology, Pakistan Telecommunications (MOITT). The requests were filed under the Freedom of Information Ordinance (FOI) 2002.

Under the Ordinance, the Ministry had 21 days to respond, which it didn’t, following which we proceeded to lodge a complaint regarding the non-provision of information with the Federal Ombudsman. Letters were issued by the Ombudsman’s office to the MOITT to respond to the FOI requests. On May 2, MOITT responded citing Section 8 (e),(f) and (i) of the FOI Ordinance as the reason for nondisclosure & non-provision of information for two of our requests i.e. directives for blocked websites and web-filtering equipment.

On May 18, we wrote to the Ombudsman again, stating we were not satisfied with the responses received to all three of our requests and asked for a hearing with the MOITT. We placed on record a detailed legal interpretation on why we find MOITT’s non-disclosure citing Section 8 of the FOI Ordinance to two of our requests unsatisfactory and inconsistent with the provisions of the 2002 FOI Ordinance and the Constitution of Pakistan.

Read complete analysis here:

 Interpretation of Section 8 of Freedom of Information Ordinance 2002 with respect to Non-provision of Information

An executive summary of the document can be found below:

Right to Information:

1. Access to information is a statutory right under the Freedom of Information (FoI) Ordinance 2002

2. The purpose of the ordinance is to increase transparency and freedom of information in order to ensure citizens have improved access to public records to make federal governments accountable to citizens (see Section 3(2) of the FOI Ordinance)

3. Information we have requested falls under Section 7 of the Ordinance, specifically:

a) Policies and guidelines

b) Contracts and agreements by a public body

c) Final orders and decisions, including decisions relating to members of public

*Refer to the following case law: 

Indus Batteries Industries (Pvt) Ltd v/s Federation of Pakistan and Others before the Sindh High court (2008)

AND 

Watan Party and Others v/s Federation of Pakistan and Others before the Supreme Court of Pakistan  (PCD 2012 C292)

4. Statutory right of access to information is further endorsed and bolstered by Article 19-A of the     Constitution of Pakistan

5. This must be liberally construed to afford maximum right or benefit to citizens to expand the right to information

Due Process for Limiting Rights & Information:

1. In curtailing this fundamental right or restricting it, the State has to follow procedural requirements which it must satisfy for the restriction to be legally justified which, we believe the MoITT has not done

2. The first requirement is that the restriction must be imposed through law and not arbitrarily or through discretionary power of the executive branch

3. The legislative branch is empowered to restrict this freedom through legislation and Section 8 of the FOI 2002 Ordinance cites restrictive provisions

4. Section 8 is to be interpreted strictly and not used arbitrarily to defeat the Ordinance

*See Humaira Hassan v/s Federation of Pakistan and others before the Lahore High Court(2012 PLC C.S. 566) which states that final orders or decisions that involve individuals should be made public record

5. For the restriction to apply, the Federal Government must have declared the said material as ‘classified’ as per Article 99(3) of the Rules of Business (1973), which states that the Cabinet Division is responsible for declaring material as classified

6. In issuing the declaration for information to be deemed classified, the federal government must under Section 24-A of the General Clauses Act 1897 provide justifications for the declaration

* See PML v/s Federation of Pakistan (PLD 2007 SC 642) before the Supreme Court of Pakista

7. Only in limited circumstances where disclosure may cause more ‘harm than good’ can such non-disclosure be justified

*See Indus Batteries Industries (Pvt) Ltd v/s Federation of Pakistan and Others before the Sindh High Court (2008 PTD 246)

8. Further, when citing greater harm than good as a reason for non-disclosure, the public body must provide justifications and cogent reasoning

Concluding remarks:

1. In order for public record to fall within the exclusions stipulated in Section 8, it must be declared as classified by the competent authority under the Ordinance read together with the Rules of Business

2. The competent authority, in exercising rightful authority under law will have to provide valid and cogent justifications for its decision for curtailing a fundamental right of the citizens of Pakistan

3. In view of the Rules of Business, only the Cabinet Division or for limited purposes the Interior Division and Defence Division, have the authority to declare information as “classified,” not any other division or department of the Federal Government

4. The Ministry of Information Technology and Telecommunications does not fit the criteria of the competent authority; an order or exercise of executive discretion leading to denial of access to information would arguably be ultra vires of the law