Access to Information Legislation (PNG0013)

Problem/Issue to be addressed The flow of information for public consumption and decision-making is weak in PNG. The agencies within the government, civil society and private sectors are overprotective in sharing information for public benefit due to administrative restrictions. There is no policy or legislation platform that enables the agencies (government, CSO & private sectors) to share public information that are required by organizations and individuals planning and decision-making purposes, for evidence-based policy formulation, investments and general public consumption.

Main Objective The objective of this commitment is to enhance the flow of public information through a legislative framework to enable greater participation of citizens in the management of public affairs. The Access to Information Legislation will address the barriers that limit the flow of information to the citizens and from one agency to another agency or from point A to point B.

Brief Description of Commitment Pursuant to s 51 (1) of the National Constitution, it states that “every citizen has the right of reasonable access to official documents subject only to the need for such secrecy as is reasonably justifiable in a democratic society”. Further in s 51 (3), it states “provision shall be made by law to establish procedures by which citizens may obtain ready access to official information”. The current Access to Information Act will allow citizens to have access to government information. The National Constitution calls for an appropriate legislation to be developed to enable easy accessibility of public information. The Access to Information Legislation will be drafted to be enacted by Parliament to address the flow of information barriers faced in the country.

OGP Challenge address by the Commitment OGP Grand Challenge to be addressed through this Commitment are; ✓ Ease the administrative barriers of the flow of public information. ✓ Establish the legislative framework that will obligate agencies to make available public information for access. ✓ Enable citizens to have access to valuable public information that they have wished to but never accessed before. ✓ Increasing Public Integrity and confidence in the Government Information Systems.

Relevance Briefly describe the way in which this commitment is relevant to further advancing OGP values of access to information, public accountability, civic participation and technology and innovation for openness and accountability. “Access to information legislation” is one of the central tenets of the OGP and has become a major driving force in the promotion of access to information reforms worldwide. As a cornerstone for open government platform, the legal right to request information from the government can lead to more open, accountable, and participatory government while the public are required to have laws enabling the fair access to information and could further establish mechanisms through which they can monitor and provide feedback on the right to information system. Any country wishing to participate in OGP needs to meet minimum eligibility requirements, hence access to information directly aligns with PNG Commitment to the OGP membership. This commitment to enact the “Access to Information” legislation and other proposed bills are expected to be key instruments contributing towards transparency and accountability to build more open institutions, and generate useful public knowledge. Furthermore, there are valuable tools to allow for greater engagement of citizens in the management of public affairs.

Ambition Briefly described the intended results of the commitment and how it will either make government more open or improve government through more openness Since 2011, countries in five continents have included more than 120 access to information commitments in their National Action Plans (NAPs), spanning from legal reforms and capacity building activities to technological developments and dissemination programs. The Access to Information Legislation is expected to be a key instrument contributing towards transparency and accountability to build more open institutions, and generating useful public knowledge. Furthermore, it is a valuable tool to allow for greater engagement of citizens in the management of public affairs.

Milestones Activity Descriptions Start Date End Date

Phase 1: Drafting the Legislation

1.1 Drafting Committee Establish a Drafting Committee with a defined term of reference and work plan & cash-flow April, 2022 End of April, 2022

1.2 Drafting Committee Meetings The Drafting Committee meetings as per the work plan April, 2022 September, 2023

1.3 Drafting and Workshops Draft the Access to Information Legislation with interval meetings and drafting workshops May, 2022 June, 2022

1.4 Draft Bill Produce the Draft Bill for stakeholder consultations May, 2022 July, 2022 Phase 2: National and Regional Consultations

2.1 Four regional consultations Conduct four regional stakeholder consultations September, 2022 October, 2022

2.2 National Consultation Conduct a National stakeholder consultation October, 2022 November, 2022

2.3 Consultation Report Formulate the Stakeholder Consultation Report December, 2022 End of December, 2022

Phase 3: Legal Administrative Process

3.1 Drafting Instruction, NEC Submission and Explanatory Note Formulate the Drafting Instruction, NEC Submission and the Explanatory Note February, 2023 March, 2023

3.2 Certificate of Necessary Letter to State Solicitor with necessary attachments to get the Certificate of Necessary March, 2023 April, 2023

3.3 NEC Endorsement NEC Policy Submission is made with the CoN and other necessary documents to NEC for its endorsement May, 2023 June, 2023

3.4 Certificate of Compliance Letter to First Legislative Council with NEC Decision No#, CoN, and other necessary documents to the First Legislative Council for the Certificate of Compliance July, 2023 August, 2023

3.5 Enactment of Access to Information Bill into Act Table the Access to Information Bill on the Floor of the National Parliament November, 2023 December, 2023

Action Plan Review

6. Access to Information Legislation

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

For reference in Papua New Guinea’s 2022-2024 National Action Plan, see Cluster 3, Commitment 1.

Commitment 6. Access to Information Legislation.

This commitment aims to institute an access to information law, which would make the government more open, accountable, and participatory.

For a complete description, see Commitment 3.1 in Papua New Guinea’s 2022-2024 National Action Plan.

Context and objectives:

This commitment continues the first action plan’s effort to introduce a national access to information policy and legal framework. ^[22] While Section 51 of Papua New Guinea’s Constitution formally enshrines freedom of information, ^[23] there is no enabling legislation apart from provisions under Section 1c of the Statistical Services Act 1980. ^[24] The Department of Information and Communication Technology (DICT) has drafted the National Right to Information Policy (2020-2030) ^[25] as the basis for the planned enabling legislation. Next steps for the policy are validation by a DICT workshop, ^[26] and endorsement by the new government. However, progress on the legislation has faced obstacles to date. An earlier draft of the access to information legislation was stalled at the Constitutional Law Reform Commission from 2012. In late 2019, a new draft by DICT likewise did not progress. ^[27] In early 2022 it was reported that a workshop on drafting the planned legislation was being prepared. ^[28]

Potential for Results: Substantial

The Act will encompass access to information and include penalties for non-compliance. To draft this legislation, the Department of National Planning and Monitoring and DICT are engaging external advisors and planning a consultative process with CSOs including Transparency International PNG (TIPNG), the Center for Environmental Law and Community Rights (CELCOR), the Consultative Implementation and Monitoring Council (CIMC), and others. They will be given the opportunity to discuss ownership, enforcement, and other feedback. During the consultation process, DICT will identify the implementing government agency. ^[29]

Stakeholders interviewed considered this a promising commitment, given existing barriers to government transparency. ^[30] A 2018 study of 24 state agencies found that almost 90 percent of state agencies did not provide information when directly requested. ^[31] TIPNG reported in 2019 that citizen access to government information was limited, and that CSOs were often forced to establish relationships with government staff to obtain information. ^[32] In December 2021, the UN Resident Coordinator a.i. in Papua New Guinea identified this initiative as a key mechanism to reduce corruption, noting that effective access to government information leads to greater public sector accountability and transparency. ^[33] In May 2022, the Minister for Information and Communication Technology publicly endorsed this commitment, saying that it would obligate all public organizations to make information publicly available and ease media access. ^[34] The planned legislation would represent a major step forward, but would need complementary action to bolster systems, personnel, and create the bureaucratic culture supportive of open access to information for citizens.

A first step is DICT’s planned Monitoring and Evaluation Unit for implementation of this legislation and the Digital Government Act 2022. This provides an opportunity for Papua New Guinea to also demonstrate information policy leadership within the Pacific and to work alongside the Papua New Guinea Ombudsman. ^[35]

Opportunities, challenges, and recommendations during implementation

Immediate operational challenges for this commitment are the timeline and drafting personnel. As the Drafting Committee was not established by mid-May 2022, it may be practical to amend the timeline and table the Access to Information Bill in mid-2024. Funding needs to be addressed urgently, ^[36] as does ensuring cross-government and civil society collaboration on this legislation. Given the Constitutional and Law Reform Commission’s role in all law review initiatives, ^[37] it would be an important partner for the commitment.

Drafters also have a rare opportunity to legislate for proactive release of official information, requiring government agencies to always publish official information which is not personal or commercial rather than waiting for it to be requested by the public. This could be integrated into the planned e-government portal under Commitment 7. While proactive disclosure could be considered a very ambitious step for Papua New Guinea, it would create long-term efficiencies and reduce the number of requests made, as the information would already be available. Papua New Guinea’s political and government leaders could globally demonstrate their strong commitment to information transparency. The drafters could draw on New Zealand’s introduction of proactive release of Cabinet Papers, Ministerial diaries, and responses to requests. ^[38]

Implementation of the Act will require funding, delivery of new systems, and significantly raised staff capability and willingness to release unrestricted official information. As such, the IRM recommends the following:

• Update the timeline for this commitment. Confirm resources and funding, review progress, and amend the date for tabling the Access to Information Bill to mid-2024.
• Move the public service to an information disclosure culture. Seek Ministerial approval to start planning an information disclosure culture, strengthening the institutions that could implement and monitor the legislation, and training all public service staff, including the OGP secretariat and the Ombudsman, on the right to information and how to operationalize it.
• Build consensus among government agencies on legislative development through regularly scheduled meetings between the Constitutional and Law Reform Commission, DICT, the Department of Justice, the Department of National Planning and Monitoring, and other relevant agencies. Work collaboratively to build institutional understanding and capacity in this area and raise the low level of investment exhibited during the first action plan. Involve the Minister of the Department of Information and Communication Technology in the drafting process.
• Consider international best practices on freedom of information policy and legislation, including policy frameworks for proactive release of public information, requiring timely responses to freedom of information requests, and complaints procedures. Work with the Pacific Community (SPC) which supports Right to Information legislation and open data in the Pacific. [39] Draw on the legislation of countries rated highly in the Global Right to Information ranking, ^[40] as well as on examples of how Ghana, ^[41] Kenya, ^[42] and Paraguay ^[43] harnessed the open government platform to support passage of similar legislation.
• Develop an enduring partnership with civil society to mitigate past obstacles to passing the legislation. Throughout the drafting process, work with CSOs to address their needs in the legislation and support advocacy for its passage. Develop a program with civil society to make use of the new legislation and routinely request official information.
• Ensure enforcement of the planned law. Consider and clarify the role of the Papua New Guinea Ombudsman in monitoring and compliance mechanisms. Strengthen national law enforcement’s capability to uphold the legislation. ^[44]