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We need a ‘public interest override’ in the RTI Act
Since the interim government of Bangladesh assumed power in August 2024, we have been advocating for the immense potential of the Right to Information Act (RTI) 2009 in promoting transparent and accountable governance. In today’s column, we highlight a crucial principle of transparency currently missing from our RTI Act but deserving inclusion: the “public interest override.” The principle has been incorporated into the laws of many liberal democracies worldwide, making it a part of a larger global movement.
International standards for transparent governance, which have evolved since the end of the Second World War, advocate for the “principle of maximum disclosure” as the ideal for all RTI laws. It asserts that, as a general rule, citizens have the right to access all information held by the government, with very few exceptions. These exceptions should be as narrow as possible and aimed solely at protecting the state’s legitimate interests. In other words, public interest should be the yardstick when balancing citizens’ right to information concerning governance and the state’s legitimate need to safeguard certain sensitive information.
RTI Acts, also known as Freedom of Information (FOI) Acts—adopted by over 130 countries worldwide—typically contain specific provisions known as Exemption Clauses, which permit public authorities to withhold certain information from citizens. This information often relates to national security, international relations, personal privacy, commercial confidentiality, etc.
To prevent misuse of these exemptions for withholding information of particular public interest, a “public interest override” clause has been added to most RTI laws enacted since 1990. This means that if the public interest outweighs the likely harm to the state’s interest, even an exempted piece of information must be disclosed by public authorities, thus exempting the exemption clause. Public authorities must, therefore, carry out an inherent “harm test” when making decisions about information requests that may fall within the purview of the exemption clause.
The Bangladesh Act does not contain such an “override” clause. But given the country’s recent surge for democracy, we believe it is time to consider its inclusion. This clause would require public authorities to justify their decisions more thoroughly when rejecting citizens’ requests using exemption provisions.
Consider these examples from different parts of the world. In Ontario, Canada, the Information and Privacy Commission (IPC) deemed certain parts of records on a worker’s death on company premises to be of compelling public interest. The release of this information would “help inform the public about what the Workplace Safety and Insurance Board had done regarding health and safety conditions at the company” and “inform public debate on the adequacy of current health and safety laws.”
In another IPC case, there was a strong public interest in disclosing the probation file of a high-profile criminal, allowing the public to scrutinise the government’s knowledge of the probationer at the time of his first conviction and whether correctional agencies acted appropriately in assessing his risk. This public interest outweighed the need to protect the personal information of a killer who later committed eight murders.
Conversely, in the UK, the application of the principle led to a decision against disclosure. A FOI request was sent to the office of the deputy prime minister for a copy of the London Resilience Team Report, which contained findings and recommendations for improving emergency planning and response arrangements in London to cope with serious terrorist incidents. The request was denied on national security and defence grounds and upheld by the ombudsman. Despite recognising the very strong public interest in matters that had the potential to cause harm to the security of London, the Appeals Court found that the benefit of disclosure outweighed the damage it may cause to security. The release could allow terrorists access to information about the weaknesses and vulnerabilities of London to respond to a terrorist attack.
Another UK case involved a journalist who suspected that a university was paying a staff member without any duties and asked whether the staff member was receiving a salary and for details of her duties. The university initially refused the request on grounds of the staff member’s privacy, but the appellate authority ruled that the accountability of a public institution outweighed the privacy interests of the employee.
An Ireland case related to a request for information on the total expenses paid to each member of a group, including travel expenses, telephone and other related costs in a given period. The concerned authority initially anonymised the released information, arguing that the members’ identities and how much each received was personal information that was entitled to exemption. On appeal, however, the Irish Information Commissioner mandated full disclosure, as the public interest in ensuring accountability for public funds was considered to outweigh the officials’ privacy concerns.
In another UK case, an information seeker asked the Department of Agriculture and Food for certain records relating to two companies involved in poultry processing. It was refused on the grounds of protecting commercial interests. In its decision, the Information Commissioner recognised that the records contained information which could damage the reputation and commercial interests of the companies but found significant public interest in the matter since the department carried out regulatory functions in health, food safety, and disease control. He concluded that the interest of the public, as ultimate consumers of poultry products, outweighed the need to protect the commercial interests of the companies.
In neighbouring India, an RTI applicant sought information about the selection of eleven deputy directors of Mines Safety by the Union Public Service Commission. This was denied, citing exemption on personal privacy grounds. Faced with a complaint, the Information Commission ordered the release of the information with the seniority-cum-merit list of the selected candidates without, however, releasing their personal information. On appeal, the court ordered disclosure of personal information as necessary for larger public interest and hence exempt from the exemption provision of the law.
Applying the “public interest override” principle is not straightforward, as defining “public interest” can be challenging. RTI/FOI laws worldwide deliberately avoid doing so, mainly because such interests cover a wide range of situations which are not static but dynamic and evolve continually over time. Its application calls for individual determinations on the specifics of each case. It requires mature judgment and expertise by public authorities and the Information Commission. Despite these challenges, current developments in Bangladesh make it an opportune time to enhance the RTI Act to this higher standard.
Shamsul Bari and Ruhi Naz
are chairman and assistant director (RTI), respectively, of Research Initiatives, Bangladesh, RIB. They can be reached at rib@citech-bd.com.