Implementing Right to Information law (GH0038)

Problem to be addressed ● The Right to Information Law which was a major commitment under NAP 3 was eventually passed by the Parliament of Ghana in March 2019. The Right to Information Commission has been established to oversee its implementation. The main challenge now is how to roll-out the administrative machinery for its implementation throughout the country.

The commitment  To complete the roll-out of the administrative structure in all regions of Ghana by end of 2022

Contribution of commitment to solving problem ● Effective implementation will ensure citizen’s right to information guaranteed in the constitution of Ghana Article 21(1)

Relevance of commitment to OGP values  The commitment is crucial to the realization of the OGP value of well-informed citizenry

Additional information

Milestone Activity with a verifiable deliverable Start Date: End Date:  Train and build capacity of information officers to handle applications for information Nov. 2021 June 2023  Conduct intensive public education and sensitization on RTI law Nov. 2021 June 2023  Build effective records management systems in public institutions to ease information request and accessibility. Nov. 2021 June 2023  Ensure adequate funding and timely release of RTI Commission budget Nov. 2021 June 2023  Avoid over application of exception provisions in the RTI law Nov. 2021 June 2023

Action Plan Review

Commitment 11. Implementing the Right to Information Law

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Modest

(Ministry of Information, RTI Commission, Public Records and Archives Administration Department (PRAAD), Parliament, National Media Commission (NMC), Ghana Journalists Association (GJA), Media Foundation for West Africa (MFWA), The Right to Information Coalition, Commission for Human Rights and Administrative Justice (CHRAJ)).

For a complete description of commitment 11 see: https://www.opengovpartnership.org/wp-content/uploads/2021/10/Ghana_Action-Plan_2021-2023.pdf 

Context and objectives

In Ghana, the 1992 Constitution provides for freedom of information. [2] It prescribes that all persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society. In 2019, Parliament passed an act to operationalize this constitutional right, after over two-and-half decades of advocacy by civil society organizations and other nonstate actors, including the media. [3] The commitment to pass such law was included in Ghana’s previous action plan. [4] The government has made some advancements towards its implementation since the law came into force in 2020, such as setting up of information units and appointing information officers. [5]

This commitment seeks to complete the rollout of the administrative structure in all regions of Ghana by the end of 2022. It aims to train and build the capacity of information officers to handle applications for information; to conduct intensive public education and sensitization on the Right to Information (RTI) Law; to build effective records management systems in public institutions to ease information request and accessibility; to ensure adequate funding and timely release of the right to information commission budget; and to avoid application of exemption provisions in the Right to Information Law. These goals are aligned with one of the key recommendations of the Implementation Report of Ghana’s previous action plan. [6]

The government developed this commitment in consultation with the Parliament Select Committee on Communications, the RTI Coalition, the Data Protection Commission, UNESCO Ghana, and the heads of the civil and local government services. [7]

Potential for results: Modest

The government and civil society have begun to roll out the institutions, processes, and awareness required to implement the RTI Law. Ghana’s Minister for Information Kojo Oppong Nkrumah (MP) officially opened the Right to Information Commission’s head office in September 2021. In 2020, the government trained and deployed 99 information officers and established 478 Information Units with designated right to information officers and records officers across public institutions. In 2022, the RTI Commission intends to establish an office in each of the country’s 16 regions. [8] The Ministry of Information has also rolled out a data storage retrieval tool to assist with data management. [9] Since 2019, civil society organization Media Freedom for West Africa (MFWA) has conducted sensitization and trainings on the law for journalists, the public, and public officials. [10] In 2021, MFWA also developed and distributed 500 copies of a guidebook on the law. [11]

In addition to the milestones outlined in the commitment, the Ministry of Information and RTI Commission also intend to recruit and train more information officers, conduct training across public institutions to strengthen public officials’ knowledge of the law, encourage proactive disclosure, and deploy an online records management system. [12]

Dr. Kwesi Jonah from the Institute for Democratic Governance and MFWA cited three major challenges to implementing the law to be (i) a lack of understanding of the law among public officials and unclear bureaucratic processes, (ii) widespread use of exemptions provided for in the RTI law to deny requests, and (iii) a lack of standardization of fees to process requests across public institutions. [13] As a result, open government results will largely depend on the extent to which implementation addresses these obstacles.

Civil society and the media's use of right to information requests indicate the need to address public officials' lack of clarity around the RTI law and processes. MFWA submitted over 30 RTI requests to public institutions between September 2020 and June 2021. These requests revealed grey areas of the law to be clarified, exorbitant fees required by the government before releasing information, and the failure to provide the requested information in most cases. MFWA has met with the RTI Commission to discuss steps to address these obstacles. [14] Between March and July 2021, investigatory research organization The Fourth Estate sent information requests to 33 ministries, received acknowledgment from 17, and the information requested from eight ministries within the 14-day timeline stipulated by the RTI Law. The Fourth Estate noted that low understanding of the RTI Law, particularly among front desk officers who initially received the requests, frequently contributed to requests being misdirected and unacknowledged. However, the organization found that appeals on the lack of response to the head of the agency or the RTI Commission resulted in a response in several instances. [15]

Milestone 5 aims to avoid overapplication of exemption provisions in the RTI Law but does not state how this will be achieved. Sections 5 through 17 of the RTI Law lists information exempt from public disclosure. [16] The Global Right to Information Rating scores Ghana’s RTI Law as 19 out of 30 possible points for the “exemption and refusal” indicator. This is in part due to illegitimate exemptions and exemptions that have not yet been harm tested. [17] Therefore, training, clear procedures, and best practice guides are important potential tools to encourage broad interpretation of the law and to avoid overapplication of exemption provisions.

A lack of standardized fees for information requests has resulted in disputes and uneven application of fees across government. ^[18] In one instance in 2021, the Minerals Commission of Ghana requested GH₵ 6,000 ($1,000 USD) to respond to an information request on companies licensed to mine in Ghana or that had their licenses suspended between January 2013 and May 2021. [19] The RTI Commission subsequently ruled that this fee was illegal and instructed the Minerals Commission to charge GH₵ 1.90 (US $0.33) to provide the information via email within 14 days of the ruling. In March 2022, the Accra High Court dismissed the case, thereby affirming the RTI Commission’s right to enforce reasonable fees. [20]

While not explicitly addressed in the commitment text, government standardization and minimization of fees is a critical step to fully implement the RTI Law. As of March 2022, the Ministry of Information had presented proposed fees and charges for information requests to parliament for approval. [21] Patricia Sampson, Director Finance and Administration Directorate with the Ministry of Information reported to the IRM researcher that, “the Ministry of Information in collaboration with the RTI Commission has initiated the process to pass a subsidiary legislation on the RTI Act. This will go a long way to ensure that loopholes in the mother act are addressed accordingly to ensure a smooth implementation of the law.” [22] Stakeholder consultations to inform the subsidiary legislation were ongoing at the time of writing this report. [23] Standardization of lower fees and subsequent training and guidance for responsible officials could significantly contribute to full implementation of the RTI Law.

This commitment has a modest potential to increase citizens’ access to information by institutionalizing the Right to Information Law. If fully implemented, this commitment would address some of the central obstacles to comprehensive implementation of the right to information across government. First, continued training and sensitization could address low levels of understanding of the RTI Law among responsible officials, particularly surrounding the application of exemptions and fees. Evidence of notable open government results could include the issuance of standards of good practice and guidance derived from the trainings conducted. Second, the government’s commitment to work towards adequate funding and effective records management promises to address the bureaucratic obstacles that currently inhibit timely responses to information requests. Finally, well-trained RTI officers support the implementation of other commitments in this action plan, such as maintaining the open data portal and public access to information on the state budget and officials’ assets.

This commitment is very broad and ambitious in scope, which may prove a challenge to realize within the two-year implementation period. Limited information on some of the key activities—such as milestone 5 to avoid overapplication of the exemption provisions of the RTI Law—makes it difficult to fully assess the commitment’s potential. Additionally, the commitment text does not state whether implementation would address uneven application of fees. Lack of specificity in the commitment text around these key activities prevents this commitment from reaching a substantial potential for results.

Opportunities, challenges, and recommendations during implementation

Ghana’s access to information reform benefits from the support of the current administration and a strong civil society coalition. [24] The President’s support could provide an opportunity to send a clear message to all ministries across government on the importance of duly implementing the act. Furthermore, the civil society coalition can advance implementation efforts by continuing to identify barriers to access information and monitoring government progress to address these barriers.

A possible challenge when executing this commitment is a lack of sufficient resources for implementation because of economic hardship. Measures previously adopted by the Ministry of Information during the current pandemic, such as online trainings, can help ease the resources needed for successful implementation. Joining efforts with civil society would also be helpful in this regard. Another challenge relates to restrictions imposed or reimposed due to COVID-19, which may further restrict the right to information. [25] The experiences of CSOs in requesting information during the pandemic should be considered and addressed in the future to avoid new restrictions to the right to information.

Ghana may also refer to other OGP member countries’ commitments to implement the right to information. [26] Based on these resources, the IRM specifically recommends the following:

● The Ministry of Information and the Parliament of Ghana should prioritize standardizing and minimizing access to information fees. Fees should be reasonable and clearly stated to the public.

● The RTI Commission and Ministry of Information can also support ministries’ proactive and online publication of information to reduce costs and the burden on government officials to respond to requests. ^[27]

● The Ministry of Information should institutionalize feedback from activities carried out when implementing the commitment. For example, building on learnings from trainings and sensitization, the Ministry could elaborate a code of practice that gathers standards around the use of exemptions to information or the timeline for responses, among other issues, [28] to promote consistency when responding to requests.

● The RTI Commission and Ministry of Information should continue to work closely with civil society to monitor and implement the Right to Information Law, as demonstrated by the Media Foundation for West Africa’s work thus far.