Since the second reading of the Freedom of Information Bill there has been attempts by those in government, especially the government spokesperson Dr Jeff Ramsay and the Minister of Presidential Affairs and Public Administration, Mr Mokgweetsi Masisi, to discredit the Bill and dismiss it as dangerous and with the ability to render the country ungovernable. What is most frustrating though, is that this conclusion remains unsubstantiated and the two gentlemen have mastered the art of shifting and adjusting their position every time they are contacted to discuss the Bill. As such we are still in dark as to what really is the position of government with regard to the Freedom of Information Bill that is before parliament. This article marks the first of a series that the Freedom of Information Task-Force shall author to discern and unpack the issues surrounding Freedom of Information with the intention to educate the public about the law, its benefits as well as to dispel the myths and fears created by a deliberate misrepresentation of facts on the part of the government machinery.
In this article the Freedom of Information Task-Force shall restrict its focus to one of the issues that feature predominately in the arguments presented by the government; that is the issue of privacy. It is interesting to note that critics of the Freedom of Information bill, seem to want to use this issue as the reason why the current bill should not be allowed to mature into law. Dr. Ramsay talks a lot of the need to instead have a Data Protection law preceding Freedom of Information. This view was reiterated by Minister Masisi in last week’s newspapers where he is quoted as saying a data protection law will assist to curb information leaks. This position is flawed in many ways as it seems to suggest that a Data Protection law can be used to protect state secrecy- such an application is inconsistent with International practice. Information privacy is defined by privacy International in the following terms “Information privacy…involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as ‘data protection’”. This definition alone nullifies such a usage.
The Freedom of Information Task-Force would to like to refer both Ramsay and Minister Masisi to a rich body of literature on this subject as there is need for a full appreciation of the history of privacy in information laws. In one such literature, Elena S. Danielson in “Privacy Rights and the Rights of Political Victims: Implications of the German Experience opines that “When repressive regimes collapsed in Eastern Europe, Africa and Latin America during the 1980s and 1990s, the demand to open police files filled with private information had international support from the human rights movement and carried a certain moral imperative” (176). Danielson discusses the The Stasi Records Act of 1991 which addresses both the right to know the truth about one’s personal history and the right to privacy. It is indeed worth citing the exact language:
This Act regulates the custody , preparation, administration and use of the records of the ministry for state security of the former German Democratic Republic and its preceding and succeeding organizations in order to 1. Facilitate individual access to personal data which the state security service has stored regarding him, so that he can clarify what influence the state security service has had on his personal destiny and 2. Protect the individual from impairment of his right to privacy being caused by use of the personal data.
The above caption delineates the history of the concept of data protection which arose from the 1960s and 1970s and was derived from the German, Datenshutz. This background shows that privacy laws or data protection laws (as they are also called) are aimed at giving individuals the right to their personal information and to also ensure that such information is handled and used in proper way. Put differently, while the Freedom of Information Act gives the public the right to see official information held by public authorities, the Data Protection Act allows a member of the public to see the personal information that is held about them by such organisations. We contend, here that Freedom of Information laws and Data Protection/Information Privacy are complementary and not competing rights. That is why the bill that is currently before parliament has exemptions aimed at protecting Information Privacy/Data Protection. Hence when a separate Information Privacy/Data Protection law is enacted, this is done to elevate and give more significance to the need to regulate access to information in which individuals are subject(s).
A further review of existing literature does indicate that where Information Privacy/Data Protection is yet to be enacted, citizens still use Freedom of Information laws to gain access to information held about them. We need to appreciate the fact that Information Privacy/Data protection is founded on certain principles derived from guidelines issued by the UN in 1990. In fact Bennet and Raab, 2003) have developed 10 principles namely:
Organisations should be accountable for all personal information which they create, hold and use;
They should ensure that this information is accurate, complete, up-to-date and adequate for the purpose that led to their collection;
There should be a purpose why the personal information was collected;
That purpose should be clearly identifiable;
Personal information should be collected for only that identifiable purpose
The personal information should be collected with the consent etc;
But as the Freedom of Information law, the Data Protection should allow individuals, whose information is being held, the opportunity to access it, have it corrected if found inaccurate, incomplete or obsolete. What is clear from the above illustration is that a data protection law is not aimed at protecting self-serving secrecy of government bureaucrats (as Ramsay and Minister Masisi seem to suggest). In an article published on the Weekend Post edition of 07-13 April 2012, Ramsay suggest this usage of data protection law: “ In this era of new Information technologies, responsible access to Information ought to be rooted in the legitimate need to protect data as well as define what data may be readily released. In other words any right to know must be balanced against Individual and collective rights to privacy”. It is clear from Ramsay’s argument that he is propagating for a law that will keep information from the citizens while as per the International practice, Data protection and Freedom of Information laws seek to ensure access to both personal and official information.
In conclusion the task freedom of information task force wishes to reiterate that the two laws are complementary and are not in competition. One enables citizens to gain access to information held by public authorities unless the information is subject to an exemption while the other enables citizens to gain information about them as individuals held by public authorities. However, even where no Data protection exists, a Freedom of Information law can still be used by citizens to gain access to information held about and on them.
Yours in defence of our democracy
Phenyo Butale (MISA Botswana National Director) on behalf of the FOI task force
