1. No category

ACCESS TO INFORMATION BILL (REVISED)
The object of this Bill is to —
(a) provide for the right of access to information;
(b) elaborate the scope of information, document or record that the public has a right to access
in accordance with the provisions of the 2010 Constitution of the Republic of Malawi;
(c) establish the Independent Information Commission and define its functions;
(d) promote transparency and accountability of public officers and officials of other information
holders to which this Act applies;
(e) increase participatory democracy and development, promote good governance, combat
corruption and facilitate efficiency in public services and businesses; and
(g) provide for matters connected with or incidental to the foregoing.
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ACCESS TO INFORMATION BILL
ARRANGEMENT OF CLAUSES
PART I
PRELIMINARY
Section
1. Short title
2. Interpretation
3. Application
4. Invalidity of laws inconsistent with the provisions of this Act
PART II
RIGHT OF ACCESS TO INFORMATION
5. Right of access to information
6. Restriction of limitation on the right of access to information
7. Exemption of personal information of third parties and/or information on their private
interest(s)
8. Other information that maybe exempted from disclosure
9. Exemption from disclosure of information that endangers the life, health and safety of an
individual.
10. Exemption of Legally Privileged Information, Records or Documents
11. Exemption of information on academic or professional examination and recruitment
processes
12. Exemption of Information, Documents or Records on Malawi’s International relations
13. Demonstrable harm test in determining the application of any exemption
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14. Public interest over-ride test in determining the application of any exemption.
15. Onus of burden of proof when applying an exemption
16. Right of employees to proactively disclose information, including exempted information,
where wrongdoings are implicated.
17. Whistle-blower protection
18. Third party notification
19. Severability of information
PART III
OBLIGATION TO CREATE, KEEP, ORGANISE, MAINTAIN, PRESERVE AND PROVIDE
INFORMATION, DOCUMENTS OR RECORDS
20. Obligation to create, keep, organise, maintain, preserve and provide information
21. Capacity building for staff of all institutions to which this Act applies and provision of the
requisite infrastructure and support processes for the implementation of this Act
PART IV
THE DUTY TO PROACTIVELY DISCLOSE CERTAIN CATEGORIES OF INFORMATION
22. Obligation to proactively disclose certain categories of information
23. Preparation of information manual and proactively disclosing same.
24. Annual report on compliance with the proactive disclosure obligation.
PART V
ESTABLISHMENT OF MECHANISMS FOR ENSURING COMPLIANCE WITH THE
PROVISIONS OF THIS ACT, INCLUDING APOINTING INFORMATION OFFICERS
AND DEPUTY OR ASSISTANT INFORMATION OFFICERS.
25. Appointment of information officers and their deputies or assistants, as well as establishing
mechanisms and procedures for purposes of complying with the provisions of this Act.
PART VI
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THE INDEPENDENT INFORMATION COMMISSION
26. Establishment of the Commission
27. Appointment and Composition of the Commission
28. Removal of member(s) of the Commission
29. Functions of the Commission
30. Powers of the Commission
31. Immunity of members and staff of the Commission and officials or agents of information
holders from civil or criminal proceedings
32. Term of office of member(s) of the Commission
33. Director/Chief Executive Officer of the Commission
34. Commission Staff
35. Funds of the Commission
PART VII
PROCEDURE FOR ACCESS TO INFORMATION
36. Request for access to information
37. Processing request for information, records or documents, including the requisite timeline,
notices, et al.
38. Means by which communication is to be made and information is to be provided to the
applicant
39. Transfer of requests
40. Applicable fees structure under the Act
41. Refusal of request for information
42. Steps required to be taken, where the information requested are either not in existence or
cannot be found
43. Deemed denial
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PART VIII
INTERNAL REVIEW OF DECISIONS
44. Right of internal review
45. Application for internal review
46. Decision on internal review
47. Non-delegable duty
48. Deemed refusal under an internal review process
PART IX
REVIEW OF DECISION OF INFORMATION HOLDERS
49. Right to review decisions of holders of information
50. The Commission’s right of access to information
51. Evidence in other proceedings
52. Findings and determinations of the Commission
53. The right of the applicant and third parties to receive report of the Commission’s
determinations
54. Access granted during or after review
PART X
MISCELLANEOUS PROVISIONS
55. Failure by an information holder either to comply with this Act or any determination made by
the Commission
56. Submission of annual compliance reports to the Commission
57. Submission of annual compliance report by the Commission that incorporates the annual
compliance reports made by all information holders to the Commission, to the National
Assembly
58. Offences and penalties
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59. Petition to a High Court where an information holder fails to comply with its obligations under
this Act.
60. Penalty for use of information accesses for unlawful purpose or purposes
FIRST SCHEDULE
Authorities and office/information holders to which this Act applies
SECOND SCHEDULE
Exempt organisations
An Act to provide for the right of access to information; elaborate the scope of information,
documents or records that the public has a right to access in accordance with the provisions of
the 2010 Constitution of the Republic of Malawi; establish the Independent Information
Commission and define its functions; promote transparency and accountability of public officers
and officials of other information holders; increase participatory democracy and development,
promote good governance, combat corruption and facilitate efficiency in public services and
businesses; and provide for matters connected with or incidental to the foregoing.
ENACTED by the Parliament of Malawi
PART I
PRELIMINARY
1.
(1) This Act may be cited as the Access to Information Act, 2014.
(2) This Act shall come into operation on such date as the Minister may, by statutory
instrument, appoint, provided that the Minister shall not appoint a day that is later than
twelve months after the passing of this Act.
2.
In this Act, unless the context otherwise requires—
―Appointments Committee‖ means the Public Appointments Committee of the National
Assembly established under Section 56(7) of the Constitution of the Republic of Malawi.
―Chairperson‖ means the person elected as Chairperson of the Independent Information
Commission, under Section 26(4) of this Act;
―Court‖ means the High Court of Malawi;
―Vice-Chairperson means the person elected as Vice-Chairperson of the Independent
Information Commission under Section 26(4) of this Act;
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―Independent Information Commission‖ means the Commission established under
Section 25(1) of this Act;
―Director‖ means the person appointed as Director/Chief Executive Officer of the
Independent Information Commission under Section 27 of this Act;
―Head of a public authority‖ in relation—
(a) to a government Ministry or Department means the Principal Secretary or any
other person so designated; or
(b) to a parastatal or other organisation means the Chief Executive Officer;
―Information‖ means an original or copy of any material, record or document which
communicates facts, opinion(s), data or any other matter regardless of its form,
characteristics or when it was created, that is in the custody or under the control of a
public authority, office bearer, private body or any information holder to which this Act
applies, including those specified in the Second Schedule to this Act. It also includes;
any manuscript or file in any form; any microfilm or facsimile copy of a document; any
reproduction of an image embodied in such microfilm, whether enlarged or not; any
other material held or produced from or by a mechanical, electronic or other device and
which is capable of being reproduced; documentary material irrespective of its physical
characteristics, such as correspondence, advice, memorandum, statistics, book,
drawing, plan, map, diagram, photograph, audio or visual record, any other tangible or
intangible material, regardless of the medium in which it is held;
―Local authority‖ means a council established under the Local Government Act and any
other authority declared by an Act of Parliament to be a local authority;
―Member‖ means a person appointed as a member of the Commission under Section 26
of this Act;
―Personal information‖ means information relating to an individual who is directly or
indirectly identifiable by name, identification document or through any physical or other
characteristics or attributes, but does not include information having a bearing on the
public functions of an employee of a public authority or any other person performing the
functions of a public authority;
―Private body‖ means any individual, natural or legal person who holds information on
members of the public, or carries on any business that directly affects the public, or is
wholly or partly funded by public funds;
―Public authority‖ means any person holding an office in a public or government
institution, or private entities utilising public funds, performing public functions or
providing public services or any institution, specified in the Second Schedule to this Act;
―Information holder‖ includes public authorities and private bodies as defined in this Act,
and all institutions listed in the Second Schedule to this Act;
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―Minister‖ means the Minister responsible for Information
3.
This Act applies to information, documents or records, in the custody or under the
control of any information holder to which this Act applies, regardless of whether such
information, document or record, came into existence before or after the commencement
of this Act.
PART II
RIGHT OF ACCESS TO INFORMATION
4.
(1) Subject to the provisions of this Act —
(a) every person shall have the right to access information, records or
documents, in the custody or under the control of a public authority or any
information holder to which this Act applies, expeditiously and inexpensively;
(b) every public authority or any information holder to which this Act applies, shall
make available to the general public or, on request, to any person, information,
records or documents, in its custody or under its control;
(c ) every public authority shall make available to the general public or, on
request, to any person, information on how to access its meetings and places
where information may be obtained;
(d) every public authority shall grant members of the public access to its
meetings;
(e) every private body shall make available, on request, information which it
holds on the person requesting for the information, document or record;
(f) This Act and any other legislation, policy, practice or procedure creating a right
of access to information in Malawi, must be interpreted and applied on the basis
of a presumption of disclosure. Non-disclosure is permitted only in exceptionally
justifiable circumstances as set out under this Act.
(g) All Information holders to which this Act applies, must accede to the authority
of the Independent Information Commission in all matters relating to access to
information.
(h) Any refusal by every public authority or any information holder to disclose
information, requested by an applicant under this Act, is subject to appeal.
(i) All information holders, including public authorities and private bodies must
proactively disclose all categories of information which they are specifically
mandated to disclose under Sections 16, 17 and 18 of this Act.
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(j) No person shall be subject to any sanction whatsoever, including employment
related sanction, for proactively disclosing information under this Act, in good
faith.
(2) Any person who requests for information pursuant to the right stated in subsection (1)
may do so in so far as such information is required for the exercise of his or her rights.
5.
Information requested under this Act may be deemed to be exempt from disclosure only
if the public authority or other information holder, which has custody or control of the
information, document or record claims an exemption under sections 6,, 7 8, 9, 10 or 11
for all, or for any part of, the information, document or record; and
6..
A public authority or other information holder, may claim an exemption where it
reasonably determines that disclosure of information under this Act would result in the
unreasonable disclosure of personal information about a natural third party or cause
harm to the private interests of such third party.
7.
A public authority may claim an exemption where disclosure of information under this
Act;
(a) would reasonably be expected to cause damage to the security or defence of
Malawi or would divulge any information or record which relates to the defence
or security of a foreign government and which is communicated in confidence by
or on behalf of such foreign government; or
(b) would reasonably be expected to disclose, or enable a person to ascertain,
the existence or identity of a confidential source of information in relation to the
enforcement or administration of the law or endanger the life or physical safety of
any person; and (or)
(c) would reasonably be expected to cause substantial harm to the legitimate
interests of Malawi in crime prevention and any preliminary investigation of crime
or other unlawful acts.
8.
A public authority or any information holder to which this Act applies, may refuse a
request for information, documents or records, where its release, has the real likelihood
of endangering the life, health or safety of an individual.
9.
A public authority or an information holder to which this Act applies, may refuse a
request if the information
(a) consists of confidential communication between a medical practitioner and his
or her patient;
(b) consists of confidential communication between a lawyer and his or her client;
(c) consists of confidential communication between a journalist and his or her
source; or
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(d) would otherwise be privileged from production in legal proceedings, unless
the patient, client, source or person entitled to the privilege consents to the
release or has waived the privilege.
10.
(1) A public authority or any information holder to which this Act applies, may refuse a
request for information relating to an academic or professional examination or
recruitment or selection process prior to the completion of that examination or
recruitment or selection process if the release of the information is likely to jeopardise
the integrity of that examination or recruitment or selection process.
(2) Information referred to under subsection (1) must be released on request after the
academic or professional examination or recruitment or selection process has been
completed.
11.
A public authority or any information holder to which this Act applies, may refuse to
grant access to information, documents or records;
(1) supplied by or on behalf of the Republic of Malawi to another state or an
international organisation in terms of an international agreement with that
state or organisation which requires the information to be held in confidence;
(2) required to be held in confidence by international law;
(3) on the positions adopted or to be adopted by the Republic of Malawi or
another state or an international organisation for the purpose of present or
future international negotiations; or
(4) that constitutes diplomatic correspondence exchanges with another state or with an
international organisation or official correspondence exchanges with diplomatic missions
or consular posts of the Republic of Malawi, if the release of the information, documents
or records would cause substantial prejudice to the international relations of the state.
12.
(1) Notwithstanding any of the exemptions contained in this Act, a public authority,
private body or other information holders listed in the Second Schedule to this Act, can
only refuse an applicant, access to information, if the harm to the interest protected
under the relevant exemption stated in this law, resulting from the release of the said
information, demonstrably outweighs the public interest in the release of the information
to the applicant.
(2) An information officer or the head of a public authority or other information holder
listed in the Second Schedule to this Act, must consider whether subsection (1) applies
to any information requested by an applicant, before refusing access to the applicant’s
request, on the basis of any exemption stated in this Act.
13.
(1) A public authority shall disclose the information requested notwithstanding that it has
claimed an exemption under section 7, 8 and 11 where to do so would be justified in the
public interest having regard to both any benefit and harm that may accrue from doing
so.
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(2) In determining whether disclosure is justified in the public interest, the public authority
shall have regard to considerations such as obligations to comply with legal
requirements, the prevention of the commission of offences or other unlawful acts,
miscarriage of justice, abuse of authority or neglect in the performance of an official duty,
unauthorised use of public funds, the avoidance of wasteful expenditure of public funds
or danger to the health or safety of an individual or the public, or the need to prepare and
protect the environment, and the need to improve public participation in, and
understanding of, public policy making.
(3) With respect to third parties, if disclosure of the information in respect of which a
public authority has claimed an exemption under section 9 or 10 is determined to be in
the public interest, the public authority shall notify the third party in writing that the
information shall be disclosed upon the expiry of fifteen calendar days from receipt of the
notice, and inform the third party of that party’s right to a review, the authority with which
an application for review should be lodged, the period within which the application may
be lodged.
14.
A public authority or any information holder to which this Act applies, that refuses to
grant access to information, document or record requested has the burden of proving
that –
(1) such information, document or record is exempt from disclosure under this Act;
and
(2) the harm to the protected interest under the relevant exemption that would result
from the release of the information, document or record outweighs the public
interest in the release of the information, document or record.
15.
Notwithstanding the provisions of this Act dealing with exemptions, or of any other
legislation, an employee of a public authority or any information holder to which this Act
applies, may proactively disclose publicly, including where necessary and/or possible, to
the Commission, or any other authority which has power to act upon the information
disclosed, or any other authorised person, the contents of a document, communication
or information which exposes the wrongdoing of another employee or officer of the
public authority, whether or not that employee came across the information, in the
course of his or her duties.
16. (1) No person is criminally or civilly liable for the disclosure or authorisation of the disclosure
in good faith of any information, document or record under this Act.
(2) No person may be subjected to any detriment in the course of their employment by
reason of the disclosure or authorisation of the disclosure in good faith of any
information under this Act.
(3) No action, disciplinary or otherwise, shall lie and no proceedings may be brought
against any employee who discloses information under this Act, for damages resulting
from —
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(a) the disclosure in good faith of all or part of any information, document, or
record; or
(b) the consequences arising from such disclosure.
(4) For purposes of this Act ―wrongdoing‖ includes fraudulent, dishonest or criminal
conduct or maladministration.
17.
Where a public authority or any information holder to which this Act applies, reasonably
determines that a request for access to information, documents or records involves the
confidential commercial interests of a third party, the authority or institution shall
forthwith notify the third party in writing of the specifics of the request and that the
disclosure of the information, document or record is imminent unless the third party,
within fifteen calendar days of receipt of the notice, responds in writing that it considers
the information to be confidential and gives reasons as to why harm would result from
disclosure; and if based on the response, the authority or institution determines that
such harm is in all likelihood bound to occur, the authority may claim an exemption.
18.
If a public authority or any information holder to which this Act applies, determines that
part of the information, document or record, requested is exempt from disclosure, the
authority or institution, shall disclose the remainder of the information, document or
record, which is not exempt from disclosure and shall, accordingly, inform the person
who made the request for the information.
PART III
OBLIGATION TO CREATE, KEEP, ORGANISE, MAINTAIN, PRESERVE AND PROVIDE
INFORMATION, DOCUMENTS OR RECORDS
19.
(1) Every institution to which this Act applies, including all public authorities shall create,
keep, maintain and preserve all information, records and documents in its custody or
under its control, in a form that is complete, organised and accessible.
(2) Every institution to which this Act applies, including public authorities, shall maintain
every record, document or information, for a period of ten years after the date on which
the information, record or document is generated by the institution or on which the
information, document or record comes under its custody or control. At the expiration of
this ten years period, the institution shall transfer the information, document or record in
its entirety to the National Archives, where they shall be accessible to the public in
accordance with the provisions of this Act.
(3) The Independent Information Commission shall at all times have the right to examine
any information, document or record maintained in accordance with subsection (1) or
any other provision of this law.
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20.
(1) Every institution to which this Act applies, has the obligation to conduct on regular
basis, effective capacity building training programmes for their staff on implementing the
provisions of this Act effectively, including the duty to create, keep, organise, maintain,
preserve and provide information to members of the public as required by the provisions
of this Act.
(2) All institutions to which this Act applies, have an obligation to provide the requisite
infrastructure and institute all mechanisms, processes and procedures for ensuring
effective compliance and implementation of the provisions of this Act.
PART IV
THE DUTY TO PROACTIVELY DISCLOSE CERTAIN CATEGORIES OF INFORMATION
21. (1) Every institution to which this Act applies must publish the following information
produced by or in relation to that institution within 30 days of the information being
generated or received by the institution;
(a) manuals, policies, procedures, rules or similar instruments which have been
prepared for, or are used by, officers of the institution in discharging the institution’s
functions, exercising its powers or handling complaints, making decisions or
recommendations or providing advice to persons outside the institution with respect to
rights, privileges or benefits, or to obligations, penalties or other detriments, to or for
which such persons may be entitled;
(b) the names, designations and other particulars of the information officer(s), deputy or
assistant information officer(s) of the institution, including their physical contact details
and electronic addresses where any applicant may submit requests for information;
(c) any prescribed forms, procedures, processes and/or rules for engagement with the
institution by members of the public;
(d) the particulars of any arrangement, statutory or otherwise, that exists for consultation
with, or representation by, members of the public in relation to the formulation or
implementation of the institution’s policies or similar documents;
(e) whether meetings of the institution, including those of its board, councils, committees
or similar bodies, are open to members of the public and, if so, the process for direct or
indirect engagement; but where a meeting is not open to the public, the institution must
proactively make public the contents of submissions received, the process for decision
making and decisions reached;
(f) detailed information on the design and execution of any subsidy programmes
implemented with public funds, including the amounts allocated and expended, the
criteria for accessing the subsidy, and the beneficiaries;
(g) all contracts, licences, permits, authorisations and public-private partnerships granted
by the institution;
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(h) reports containing the results of surveys, studies or tests, including scientific or
technical reports and environmental impact assessment reports, prepared by the
institution; and
(i) any other information directed by the Independent Information Commission.
(2)Every institution to which this Act applies, is required to annually publish proactively,
the following information produced by or in relation to the institution;
a) the particulars of its organisation, functions and duties;
(b) information containing interpretations or particulars of Acts or policies administered
by the institution;
(c) details of its processes and procedures for creating, keeping, organising, maintaining,
preserving and providing information, documents or records;
(d) a list of all categories of information, documents or records in its custody or under its
control;
(e) a directory of its employees including their powers, duties and title. It should also
include information, indicating the permanent staff, temporary staff and outsourced
staff, recruitment procedures and vacancies;
(f) the yearly band of remuneration for each employee and officer, including the system
of compensation as provided in its enabling legislation and related laws, the
procedures followed in its decision-making process, including channels of supervision
and accountability;
(g) detailed travel and hospitality expenses for each employee and officer, and gifts,
hospitality, sponsorships or any other benefit received by each employee and officer;
(h) a description of the composition, functions, and appointment procedures of its board,
council, committees, and other bodies consisting of two or more persons, constituted
as its part or for the purpose of advice to or managing the institution;
(i) the detailed actual budget, revenue, expenditure and indebtedness for the current
financial year, including all related estimates, plans, projections, reports and audit
reports, and for any previous financial years from the date of the commencement
of this Act;
(j) the annual report submitted by the institution, to the Independent Information
Commission; and
(k) any other information as directed by the Independent Information Commission.
22. (1) As soon as possible but in any event within a year of the commencement of this Act, or
within 6 months of the establishment of the Independent Information Commission,
whichever is earlier, all information holders to which this Act applies, must prepare
information manuals to be widely disseminated publicly, including in the official gazette,
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print and electronic media, online and also submitted to the Independent Information
Commission.
(2) The manual referred to in subsection (1) must include the categories of information that
the information holder is statutorily obliged to proactively disclose and those which will
be made available only through the formal request process in accordance with the
provisions of this Act.
(3) With regard to proactively disclosed information, the Independent Information
Commission must from time to time determine;
(a) measures to be undertaken to ensure accessibility of information;
(b) accessibility guarantees in terms of medium, format and language;
(c) measures to ensure accuracy of information; and
(d) additional categories of information not listed in section 22 that must be proactively
disclosed.
(4) With regard to all other information, the Independent Information Commission must
determine;
(a) measures to be adopted to ensure periodic and frequent updating of all categories of
information held by the information holder;
(b) measures to be undertaken to ensure accessibility of information;
(c) accessibility guarantees in terms of medium, format and language; and
(d) measures to ensure accuracy of information.
(5) The information manual must, together with the information required in subsection (2),
include the following information about the information holder;
(a) a description of the structure, functions, powers and duties;
(b) physical and electronic contact details of the information officer(s) and their
assistant(s);
(c) the plain language guidelines developed by the Independent Information
Commission;
(d) a description of any arrangement or provision for a person to make recommendations
or to otherwise participate in the formulation of policy or the exercise of powers or
performance of duties by the information holder;
(e) a description of remedies available in respect of an act or omission by the information
holder; and
(f) the manner of payment of reproduction fees, translation fees and/or transcription fees.
(6) An information holder must;
(a) update and publish its information manual whenever material changes occur to the
information contained therein, but at least every 2 years; and
(b) submit the updated information manual to the Independent Information Commission
and also disclose them proactively to the public.
23.
All institutions to which this Act applies must, at the end of each financial year, but not
later than the end of the first quarter of the succeeding year, submit, to the Independent
Information Commission, a report stating the categories of information that have been
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proactively disclosed by the institution as prescribed by this Act, including information on
where and how, such information can be easily accessed by members of the public.
PART V
ESTABLISHMENT OF MECHANISMS FOR ENSURING COMPLIANCE WITH THE
PROVISIONS OF THIS ACT INCLUDING DESIGNATING OR APPOINTING
INFORMATION OFFICERS AND DEPUTY OR ASSISTANT INFORMATION
OFFICERS.
24.
(1) Every public authority or any information holder to which this Act applies, shall, for
purposes of this Act
(a) designate or appoint one or more officers as information officers and their
deputies or assistants; and
(b) establish processes and procedures for handling all its obligations under this
Act, efficiently and effectively, including proactively disclosing information where
applicable and dealing with all requests for information, amongst other
obligations established under this Act.
(2) Every public authority or any information holder, to which this Act applies, shall
designate or appoint the information officer(s) and deputy or assistant information
officer(s) and establish processes and procedures referred to in subsection (1) not later
than 12 months from the date of commencement of this Act.
(3) Every information officer and deputy or assistant information officer, designated or
appointed under subsection (1) shall in addition to handling all request for information
made pursuant to Section 36 of this Act, render assistance to any person(s) seeking
such information and also ensure compliance by the institution with all her obligations
under this Act, including the obligation to proactively disclose all categories of
information listed under Sections 21, 22 & 23, respectively.
(4) A person designated or appointed as an information officer, deputy or assistant
information officer(s) must be competent and suitable to exercise the powers and
perform the duties and functions of that office as stipulated in this Act.
(5) Any person designated or appointed as deputy or assistant information officer of an
information holder is subject to the supervision of the information officer of that institution
in the performance of the functions, duties and powers of that office under this Act.
(6) Any information officer and deputy or assistant information officer, may, in the
discharge of his or her obligations under this Act, seek the assistance of any other public
officer and such officer is under an obligation to provide the information officer and
deputy or assistant information officer, with the assistance that he or she requires.
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(7) Where an information holder fails to designate or appoint an information officer,
deputy or assistant information officer(s), the head of the institution, will in such
circumstances serve as the information officer for the purposes of this Act.
PART VI
THE INDEPENDENT INFORMATION COMMISSION
25.
(1) There is hereby established the Independent Information Commission which shall be
a body corporate with perpetual succession and a common seal, capable of suing and
being sued in its corporate name, and with power, subject to the provisions of the Act, to
do all such things as a body corporate may by law perform.
(2) The provisions of the First Schedule to this Act, shall apply to the Commission.
(3) The Commission shall perform its functions, independent of the direction or
interference of any person or authority.
26.
(1) The Commission shall consist of the following part-time members:
(a) a judge of the High Court nominated in that capacity by the Judicial Service
Commission;
(b) a representative of the Malawi Human Rights Commission
c) The Principal Secretary responsible for Information or his or her
representative as ex-officio;
(d) a representative of non-governmental organisations involved in advocating for
the protection and promotion of human rights, good governance and
development, transparency and accountability, combating corruption and
promoting efficiency in public services and businesses; nominated by the Council
of Non-Governmental Organisations in Malawi;
(e) a media practitioner nominated by the Media Council of Malawi or any
national representative media body;
(f) a representative of the Malawi Law Society;
(g) a member of the academia;
(h) a representative of the traditional authorities nominated by the paramount
chiefs;
(i) a representative of faith-based organisations nominated by the Public Affairs
Committee;
(2)
Members of the Commission shall be formally appointed by the Public
Appointments Committee of the National Assembly.
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(3)
All authorities and bodies responsible for nominating, appointing and approving
members of the Commission under this Act shall endeavour to achieve gender
equity in the composition of the Commission
(4) The Chairperson and the Vice-Chairperson of the Commission shall be elected by
the members of the Commission from among their number.
(5) A person shall not be appointed a member of the Commission if that person —
(a) is not a citizen of Malawi
(b) is not permanently resident in Malawi;
(c ) is a public servant or a holder of any remunerated position under the state
other than the ex officio member appointed under section 27(1)(c) of this Act;
(d) is a member of Parliament or of a district, municipal or city assembly; or
(e) is an office-bearer or an employee of a political party.
27.
(1) The Public Appointments Committee may remove a member of the Commission from
office, if—
(a) The member has been convicted of a serious crime;
(b) The member is of unsound mind or is physically incapable of performing the
functions of the office;
(c) the member commits acts of gross misconduct;
(d) the member is declared bankrupt or brought the Commission into disrepute;
(e) the member is incompetent;
(d) the member would ordinarily have been disqualified from being appointed in
the first place;
(e) on attaining Sixty-five years of age.
(2) Before terminating the appointment of a member of the Commission, the Public
Appointments Committee must do the following;
(a) appoint an independent panel of enquiry to investigate any allegation
levelled against the member. Any investigation conducted by this panel of
enquiry should be closed to the public, unless the member who is the subject
of the enquiry requests otherwise.
(b) upon the completion of the investigation, the panel of enquiry must send its
findings and recommendation to the Public Appointments Committee.
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(c) Any decision made by the Public Appointments Committee, based on the
findings of the panel of enquiry, to terminate the appointment of a member of
the Commission must be approved by a two-thirds majority of Parliament.
28.
(1) The functions of the Commission shall include —
(a) ensuring that the purposes of this Act are effectively carried out;
(b) on request —
(i) act on behalf of members of the public by making request for access to
information for such categories of members of the public;
(ii) in circumstances where the Commission is making an information
request on behalf of an illiterate and indigent applicant as outlined in
subsection (1)(b)(i) above, the Commission shall identify the relevant
public authority or other information holder, that holds the requested
information and collect the requested information from such institution on
behalf of the applicant and transmit same to the applicant;
(iii) In the events where such request made on behalf of the applicant by
the Commission, is refused and the applicant feels aggrieved by such
refusal or disputes the institutions decision refusing him or her access to
information as requested, any appeal against such decision, shall lie
directly to the High Court of Malawi as the court of first instance in such
circumstances;
(iv) Further to sub-section 24(1)(b)(iii), where the circumstances
described therein applies, the Commission shall serve as the agent of the
aggrieved applicant in any such appeal that is brought before the High
Court of Malawi;
(d) assist in realising the right to amend or comment on the personal information
of an identifiable person or applicant, which is in the custody or under the
control of a public authority or any information holder to which this Act
applies;
(e) receive and consider applications brought by either aggrieved applicants or
(f) third parties, seeking for the review of or appealing the decision of any
information holder to which this Act applies;
(e) to make recommendations to the relevant information holder(s), resulting from
applications made pursuant to paragraph (b) of this Section;
(f) to raise awareness of the right of access to information among members of
public and officials of all information holders to which this Act applies;
(g) to advice to the Government and other institutions to which this Act applies,
on matters related to the coordination and the management of information in
the custody or under the control of all public authorities and institutions under
this Act; and
19
(h) to perform such other functions as are conferred upon the Commission by or
under this Act.
(2) The Commission shall publish, annually and in forms accessible to the general
public, a guide which shall include —
(a) the objectives of this Act;
(b) the contact details of the Commission;
© the existing obligations of all information holders under this Act, including their
proactive disclosure obligations, amongst others;
(c ) the various methods and means of applying for information; and
(d) the rights of members of the public under this Act and the assistance that is
available to the general public from the Commission, especially for purposes
of ensuring optimal compliance and/or implementation of this Act.
(3) The Commission shall prepare and submit to Parliament on or before 31st December
each year, but not later than the end of the first quarter of the succeeding year, an
annual report which shall include details of all activities undertaken by the Commission
to ensure optimal compliance with the provisions of this Act both by the Commission
itself and all other information holders to which this Act applies, a review of the status of
implementation of this Act in that year and a general assessment of the efficacy of the
right of access to information in Malawi.
29.
(1) The Commission shall for the purpose of performing its functions under this Act have
the powers to —
(a) give directions of a general nature to all institutions to which this Act applies,
in connection with the performance of their duties and obligations under this Act;
(b) carry out investigations relating to applications for review made under Part IX
of this Act;
(c) administer oath, conduct hearings on any ATI dispute and receive evidence
during such hearings;
(d) enter and inspect premises to which an application for review relates;
(e) question any person, whether or not that person is employed by the
information holder to which the application for review relates; or
(f) inspect, make copies of, and take extracts from any book, record, document or
material relevant to the review process or proceedings as the case maybe.
20
(2) A person summoned to appear before the Commission who, without sufficient cause;
(a) refuses or fails to attend at the time and place specified in the summons or,
having attended, is absent from the proceedings without the permission of the
Commission;
(b) having attended, refuses to be sworn or to affirm;
(c) refuses, without lawful excuse, to answer to the best of that person’s
knowledge any question lawfully put to him or her; or
(d) refuses to produce any information, book, record, document or material,
which that person has been required by summons to produce; commits an
offence and is liable, to a fine not exceeding K500,000 or to imprisonment for
a period not exceeding Two years or both.
30.
(1) The Commission may direct any institution or information holder, to which this Act
applies, that information which is exempt under this Act be declassified as exempt
information after a period of fifteen (15) years.
(2) the institution or information holder so directed may in writing inform the Commission
its reasons for not making certain information exempt.
(3) The Commission may direct that such information be declassified after a certain
period of time.
31.
Notwithstanding the provisions of any other law, no civil or criminal proceedings shall lie
against any member or staff of the Commission, or any institution to which this law
applies, or a person acting on their behalf, for the disclosure of any information or for any
other act done in good faith pursuant to this Act.
32.
(1) A person appointed to the Commission shall serve a continuous term of not more
than three years, provided that the Public Appointments Committee may appoint that
person for a further term of three years or as it considers appropriate, unless the
committee determines that such appointment be terminated in accordance with the
provisions of Section 28 of this Act.
(2) A person appointed to the Commission shall not be removed by the Public
Appointments Committee, except in accordance with the provisions of Section 28 of
this Act.
33.
(1) The Commission shall appoint a Director on such terms and conditions as the
Commission may determine.
(2) The Director shall be the Chief Executive Officer of the Commission and shall, under
the direction of the Commission, be responsible for the —
(a) management and administration of the Commission; and
(b) implementation of the decisions of the Commission.
(3) The Director shall also be the Secretary to the Commission.
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34.
(4) The Director shall be appointed for a period of three years and may be eligible for reappointment for another term of three years.
The Commission may appoint, on such terms and conditions as the Commission may
determine, such other staff of the Commission as it considers necessary for the
performance of its functions under this Act.
35.
(1) The funds of the Commission shall consist of such moneys as may —
(a) be appropriated by Parliament for the purposes of the Commission;
(b) be paid to the Commission by way of grants or donations; and
(c) vest in or accrue to the Commission.
(2) The Commission may—
(a), accept moneys by way of grants or donation from any source; and
(b), raise, by way of loans or otherwise, such moneys as it may require for the
discharge of its functions.
(3) There shall be paid from the funds of the Commission —
(a) the salaries, allowances and other benefits of staff of the Commission;
(b) such reasonable travelling expenses, including transportation and
subsistence allowance for the members of the Commission and members of any
committee of the Commission when engaged in the business of the Commission,
and at such rates as the Commission may determine; and
(c) any other expenses incurred by the Commission in the performance of its
functions.
(4) The Commission may invest in such manner as it deems fit such portion of its funds
as it does not immediately require for the performance of its functions.
PART VII
PROCEDURE FOR ACCESS TO INFORMATION
36.
(1) A request for access to information may be made orally or in writing and shall be
addressed to the information officer, or the deputy or assistant information officer or
any other authorised person as the case maybe.
Provided that an illiterate and indigent person may request the Commission to obtain the
information from an information holder on that person’s behalf.
(2) Where an applicant makes an oral request for information, document or record to an
information officer, deputy or assistant, or any other authorized official of the
information holder, as the case maybe, such official is under an obligation to reduce
the oral application into writing, which should then be read to the understanding of
22
the applicant to secure his or her consent that the content of the written document fully
represents the content of his or her oral request for information, made to the said official,
after which a copy of the written request for information shall be handed to him or her for
their own record, while the original is kept by the authorised official of the information
holder
(3) The request for information shall provide sufficient details to enable the information
officer, his or her deputy or assistant, or any other authorized official of the information
holder, as the case maybe, identify the information. This includes the name and address
of the person requesting the information:
Provided that where the applicant is unable to write, the request for information shall
bear the thumb print of the applicant.
(4) For purposes of subsection (1) a request for information shall be treated as made in
writing where the text of the request —
(a) is transmitted by electronic means;
(b) is received in legible form; and
(c) is capable of being used for subsequent reference.
37.
(1) Where access to a record, document or information is requested, the information
officer, the deputy or assistant information officer or any other authorised staff of the
institution, to which the request is made, shall, subject to the provisions of this Act, within
fifteen calendar days after the request is received;
(a) give written notice to the applicant as to whether the information, document or
record exists and, if it does, whether access to the entire record, document or
information requested or a part thereof will be given; and
(b) if access is to be given, promptly give the applicant access to the information,
document, record or a part thereof, in the form of a copy or an opportunity to
examine the record, document or information.
(2) If the information holder requires further information in order to identify and/or locate
the information, document or record requested, it shall notify the applicant of the need
for such further information within seven calendar days of receiving the request for
information and, in that case, the period of fifteen calendar days referred to in subsection
(1) shall be reckoned from the date on which such further information is received from
the applicant.
(3) Where a request relates to information, document or record, which reasonably
appears to be necessary to safeguard the life or liberty of an applicant, the information
holder must within 48 hours after the request is submitted;
(a) determine whether it would be granting the request or not;
(b) notify the requester of the decision in writing; and
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(c) if the request is granted, give the requester access to the information, document or
record.
38.
(1) All institutions to which this Act applies, shall provide information requested by an
applicant through any of the following means, having regard to any specific request by
the applicant of the format in which he or she wants the said information, document or
record, as well as the circumstances and the cost of providing the information in the
manner requested, namely:
(a) provision of a copy of the information, document or record in a permanent
form or in another form acceptable to the applicant;
(b) provision of the information, document or record in a language which the
applicant understands;
(c) provision of a reasonable opportunity to inspect the information, document or
record containing the information;
(d) provision of a digest or summary of the information, document or record; or
(e) in the case of an applicant with sensory disability, provision of the information,
document or record in a format that allows the applicant to view, read or listen to
the record, document or information.
(2) Notwithstanding subsection (1), an information holder, shall provide information orally
where the applicant on making the request for information specifically requests that the
information be so provided.
39.
(1) Where an information holder, to which a request for information, document or record
is made, considers that another institution has greater interest in the information
requested, the information officer, deputy or assistant information officer or any other
authorised officer of the Institution, as the case maybe, to which the request was initially
made, shall, within 3 calendar days after the request is received, transfer the request to
the other institution and give written notice of the transfer to the applicant.
(2) For the purposes of subsection (1) —
(a) the period specified in Section 37 shall apply to the institution to which the
request is transferred with effect from the date on which the transferred request
is received; and
(b) an institution has greater interest in a record, document or information
requested if —
(i) the record or document, containing the information was originally
produced in or for the institution; or
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(ii) in the case of an information, record or document not originally
produced in or for the institution, the said institution was the first recipient
of the original information, record or document or a copy thereof.
40.
(1) The fees payable by an applicant under this Act, is limited to reasonable, standard
charges for document duplication, translation and/or transcription where necessary.
(2) There shall be a uniform scale of fees applicable to all information holders to which
this Act applies, in all the circumstances stated in subsection (1) above.
(3) This uniform scale of fees referred to in subsection (2) above, shall be determined by
the independent Information commission, as soon as it is possible but not later than Six
months after the coming into effect of this Act or the establishment of the Commission,
whichever happens first.
(4) Under no circumstances whatsoever, should anyone requesting access to
information in the custody or under the control of an information holder to which this Act
applies, be required to pay any application fee whatsoever, including but not limited to
the following circumstances;
(a) where the applicant requests the provision of a reasonable opportunity to
inspect, view or read through the information, document or record containing
the information and make any notes from the content of such information,
record or document, as the case maybe;
(b) where an applicant having any sensory disability, requests the provision of
reasonable opportunity to view, read through or listen to the record,
document or information and make any notes from the content of such
information, record or document, as the case maybe
41.
Where an institution to which this law applies refuses to grant an applicant’s request for
access to information, document or record, either in whole or in part, the institution shall,
in writing, notify the applicant of the refusal and shall, in the notification —
(a) set out the grounds for the refusal and all material issues relating to the
decision, including the specific provisions of this Act relied on to justify its
decision and the factors taken into consideration in relation to the public interest
test as stipulated in this Act;
(b) inform the applicant of the availability of a process for reviewing the decision,
the institution to which an application for review may be lodged and the period
within which the application for review may be made.
42.
(1) Where on receipt of the application, after taking reasonable steps to find the
information, record or document requested, the information holder asserts that the
information, document or record, though in its custody or under its control, cannot be
found or does not exist, the information holder shall promptly notify the applicant in
25
writing of this development, but not later than the 15 calendar days timeline stipulated in
Section 37 for processing all request for information.
(2) The notice referred to in subsection (1) must include an affidavit or affirmation,
signed by the information officer, his or her deputy or assistant information or any other
authorised officer of the information holder, as the case maybe, stating substantively,
details of all steps taken to find the information, document or record or to determine
whether the information, document or record actually exists, including, but not limited to
–
(a) details of all locations searched for the information, document or record and
the person or persons that conducted those searches;
(b) details of any communications with any person that the information officer, his
or her deputy or assistant information or any other authorised officer of the
information holder, as the case maybe, contacted in the course of searching for
the information or attempting to establish the existence of the information,
document or record; and
(c) any evidence relating to the existence of the information, document or record
including;
(i) any evidence that the information, document or record was destroyed;
and
(ii) the location in which the information, document or record was last
known to be held.
(3) If the information, document or record is found after notice is given to the applicant
under subsection (1), the information officer, his or her deputy or assistant information or
any other authorised officer of the information holder, as the case maybe, must
immediately notify the applicant to this effect, in writing and thereafter as soon as
possible but in any event not later than 7 calendar days after the information, record or
document is found;
(a) determine whether to grant the request;
(b) notify the requester of the decision in writing; and
(c) if the request is granted, subject to the payment of any applicable
reproduction, translation and/or transcription fee, give
the applicant access to the information.
43. Where an information holder to which this Act applies, fails to give an applicant access to
the information, record or document requested within the time limits set out in this Act, the
institution shall be deemed to have refused to give access to the information, document or
record.
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PART VIII
INTERNAL REVIEW OF DECISIONS
44. (1) An applicant may apply for an internal review of any decision of an information officer,
the deputy or assistant information officer, or any other authorised officer of the
information holder as the case maybe.
(2) A third party may apply for an internal review of a decision of an information officer, the
deputy or assistant information officer, or any other authorised officer of the information
holder as the case maybe, to grant access to information containing its third party
information.
45. (1) An applicant may make an internal review request in writing or orally to the information
officer, the deputy or assistant information officer, or any other authorised officer of the
information holder, as the case maybe, within 60 calendar days of the receipt of the
relevant decision of an information officer, deputy or assistant information officer or any
other authorised officer of the institution.
(2) A third party may make an internal review request in writing or orally to the information
officer, the deputy or assistant information officer, or any other authorised officer as the
case maybe, of the information holder, within 10 calendar days of the receipt of a
decision of an information officer, a deputy or assistant information officer or any
other authorised officer of the institution.
(3) If an applicant or a third party makes an internal review request orally, the information
officer, deputy or assistant information officer, or any other authorised officer of the
information holder, as the case maybe, must reduce that oral request into writing and
provide a copy thereof to the applicant or third party as the case maybe.
(4) An internal review request must identify the request and decision of the information
officer, deputy or assistant information officer, or any other authorised officer of the
information holder as the case maybe, which is the subject of the internal review.
(5) If an internal review request referred to in subsection (1) is lodged after the expiration of
60 calendar days, the information officer, deputy or assistant information officer, or any
other authorised officer of the information holder as the case maybe must, upon good
cause shown, allow the late lodging of the request.
(6) As soon as possible, but in any event within five calendar days after receipt of an internal
review request, the information officer, deputy or assistant information officer, or any
other authorised officer of the information holder, as the case maybe, must submit to the
head of the information holder the;
(a) internal review request;
(b) the reasons for the decision made by the information officer, deputy or assistant
information officer, or any other authorised officer of the institution as the case
maybe; and
(c) the information that is the subject of the review, and notify the applicant and, where
relevant, the third party in writing that the documents have been so submitted.
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46. (1) The head of the information holder to whom an internal review request is submitted in
accordance with section 44 must as soon as is reasonably possible, but in any event
within 5 calendar days after the internal review request is received by the information
officer, deputy or assistant information officer, or any other authorised person as the case
maybe (a) make a fresh decision on behalf of the institution; and
(b) notify the applicant and, where relevant, the third party of that decision in
writing.
(2) If the head of the information holder determines to grant access to the information,
document or record, the notice to the applicant referred to in subsection (1) must state;
(a) the reproduction fee, translation fee and/or transcription fee (if any) payable;
(b) the form in which access will be given; and
(c) that the requester may apply to the independent information commission
for a review of the decision in respect of the reproduction fee, translation fee
and/or transcription fee payable or the form of access and the process for
lodging that appeal.
(3) Subject to subsection (4), where an applicant has been given notice that access to the
information has been granted, that applicant must, subject to subsection (4);
(a) if a reproduction fee, translation fee and/or transcription fee is payable, upon
payment of that fee; or
(b) if no reproduction fee, translation fee and/or transcription fee is payable,
immediately, be given access to the information.
(4) Where the head of the information holder has determined to release information
containing third party information, the applicant may not be granted access to that
information until such time as any right of the third party to appeal the release of the
information has expired or any appeal lodged by the third party has been finally
determined.
(5) If the head of the information holder determines not to grant access to the information,
the notice to the applicant referred to in subsection (1) must;
(a) state adequate reasons for the refusal, based on the contents and substance
of the request and the information considered by the head of the information
holder;
(b) contain a reference to specific provisions of this Act upon which the refusal is
based; and
(c) inform the applicant that he or she may apply to the independent information
commission for a review of the decision in accordance with section 29(1)(d)
and the process of lodging that appeal.
(6) Where a third party has lodged an internal review request, the notice referred to in
subsection (1) must state;
(a) adequate reasons for the decision; and
(b) that the third party may apply to the oversight mechanism under section
29(1)(d) for a review of the decision, and the process for lodging that appeal.
47.
The decision referred to in section 46 must be made by the head of the information holder
personally and may not be delegated to any other person.
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48.
If the head of the information holder fails to give a decision on an application for internal
review request within the time specified in section 46, the head of the institution is
deemed to have affirmed the original decision of the information officer.
PART IX
REVIEW OF DECISIONS OF INFORMATION HOLDERS
49.
(1) An applicant who, having made a request for access to information under this Act, is
aggrieved by the decision of the information holder in relation to the request, may apply
to the Commission for a review of that decision in respect of any of the following:
(a) the refusal of access by the information holder to the information requested;
(b) the payment of fees levied under Section 40 of this Act, which the
considers unreasonable;
person
(c) the failure of the institution to comply with the various timelines stipulated for
processing requests for information in this Act;
(d) any other matter relating to a request for or access to information under this
Act.
(2) A third party that is of the opinion that the party’s interests referred to in Section 7 is
likely to be, adversely affected by the decision of the information holder in relation to an
information, document or record requested under this Act may apply to the Commission
for a review of that decision and shall be given an opportunity to make representations
during the review.
(3) The Commission shall, within thirty calendar days of receiving an application under
subsection (1) or (2), consider such application and may within that period inquire into or
investigate such application as the Commission may consider necessary.
(4) A review under subsections (1) and (2) shall be conducted in accordance with such
regulations as the Commission may prescribe.
(5) An application for review under this Part of this Act, shall be made in writing unless
the Commission authorises that it may be made orally and may be made not later than
two years from the date on which the request for information was received by the
information holder.
(6) Subject to subsection (7), the review of a decision of an information holder under this
Act shall not be construed as precluding a person who makes a request for the review
(including a third party) from making an application for redress to the High Court against
an information holder or the Information Commission, or both, in relation to that person’s
right of access to information or the right not to have the information disclosed.
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(7) An application made to the High Court shall not be made by a person unless
proceedings for review under this Part of this Act, have been concluded.
(8) For the purpose of subsection (7) proceedings for review are concluded
(a) when an individual who made an application for those proceedings dies;
(b) in the case of a person other than an individual, when that person ceases to
exist; or
(e) when an application is withdrawn by the applicant or is dismissed by the
Commission.
50.
Notwithstanding any other law or any privilege under the law of evidence, the
Commission may, during investigation relating to any application for a review under this
Part of this Act, examine any record to which this Act applies that is under the custody or
control of an information holder, and no such record may be withheld from the
Commission on any grounds.
51.
Except in a prosecution of a person for an offence of perjury [or contempt] in respect of a
statement made under this Act, evidence given by a person in proceedings under this
Act is inadmissible against that person in a court or in any other proceedings.
52.
(1) If after the consideration of an application for review the Commission finds—
(a) that the applicant is entitled to the disclosure of the information requested, the
Commission shall immediately provide the head of the information holder
concerned a report containing—
(i) the findings of the review and the determinations made by the
Commission; and
(ii) a request that, within a time specified in the report, notice is to be
given to the Commission of all actions taken to implement the
determination(s) in the report.
(b) that the applicant is not entitled to the disclosure of the information requested,
the Commission shall, within seven calendar days of making this determination,
inform the applicant in writing, stating the reasons for the finding(s) and also
inform the applicant of the right to appeal to the High Court.
(2) The Commission shall give a copy of the decision made under paragraph (a) of
subsection (1) to the applicant and any third party that made representations to the
Commission in the course of such proceedings.
(3) In like manner, in relation to paragraph (b) of subsection (1), the Commission shall
also give a copy of the decision made there-under to the head of the information holder
concerned.
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53.
After conducting a review and notifying all parties involved of all determinations made
there-on, the Commission in furtherance of its oversight functions, shall, within thirty
calendar days from when it made such determination(s), inform the applicant and any
third party that made representations to the Commission in the course of such
proceedings, on whether the information holder concerned has taken action to comply
with the Commission’s determination(s) and may make such further
comments/determination(s) on the subject matter of the review as the Commission
thinks fit.
54.
Where, during or after the consideration of an application for review, the head of the
information holder notifies the Commission that access to the information requested has
either been given or will be given to an applicant, the head of the information holder shall
give the applicant access to the information requested —
(a) within five calendar days of the notification, if no notice has been given to a
third party under section 18; or
(b) within ten calendar days after the notification, if notice has been given to a
third party under section 18.
PART X
MISCELLANEOUS PROVISIONS
55.
(1) If at any time it appears to the Commission that an information holder to which this
Act applies has failed to comply with the provisions of this Act or with a determination of
the Commission, the Commission shall, by notice in writing, require that the institution,
makes good the default within a specified time.
(2) If the institution concerned fails to comply with the notice referred to in subsection (1),
the Commission shall apply any sanctions that it deems fit to the offending institution.
(3) If after its decision to apply the requisite sanction that it deems fit to the offending
information holder, pursuant to subsection (2) above, the particular institution still
continues in its failure to comply with both the original determination made the
Commission and any subsequent sanctions meted out to the institution, the Commission
shall apply to the High Court for an order compelling the institution to promptly remedy
the default in both instances and the Court shall make an order or such orders to this
effect and such further orders as the court deems fit.
56.
(1) All information holders to which this Act applies shall as soon as possible after the
end of each financial year, but not later than the end of the 1st quarter of the succeeding
financial year, make a full report to the Commission on their level of compliance with the
provisions of this Act, including the exercise and/or performance of their functions under
this Act, during that financial year.
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(2) The report referred to in sub-section (1) shall also be made available to members of
the public, at the same time at which it is submitted to the Commission.
57.
(1) The Commission shall as soon as possible after the end of each financial year, but
not later than the end of the 2nd quarter of the succeeding financial year, make a full
report to the National Assembly on the exercise and/or performance of its functions
under this Act, during that financial year.
(2) The report referred to in Sub-section (1) shall also include the annual compliance
reports submitted to the Commission by all information holders to which this Act applies,
as stipulated under Section 56 of this Act.
58.
(1) Any person who wilfully conceals, destroys, mutilates, falsifies or otherwise alters a
document or record containing information which has been requested with intent to
prevent disclosure of the information shall be guilty of an offence and shall be liable to a
fine of K500,000 and imprisonment for a term not exceeding ten years.
(2) Where a case of wrongful denial of access to information, record or document, either
through negligence or otherwise, is established under this Act, whether it is in response
to a specific request for information or through failure to proactively disclose information
as stipulated under this Act, the offending/defaulting officer and/or institution is liable to a
minimum fine of K250,000.
(3) Failure by any information holder to which this Act applies, to submit its annual
compliance report under this Act, to the Commission and also make such report
available to members of the public, as stipulated in Section 56, attracts a minimum
penalty of K1,000,000 and any additional sanctions as maybe determined by the
Commission.
59.
Further to the provision of Sections 56, failure by any information holder to which this Act
applies, to comply with the provisions of this Act, including submitting its annual
compliance report to the Commission and also make such report, simultaneously,
available publicly, is also actionable before a High Court.
60.
Any person who uses any information accessed in accordance with this Act for an
unlawful purpose or purposes shall be guilty of an offence and shall be liable to a fine of
K250,000 and imprisonment for a term not exceeding five years.
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FIRST SCHEDULE
(Section 26(2))
PART I
ADMINISTRATION
1.
(1) The seal of the Commission shall be such device as may be determined by the
Commission and shall be kept by the Secretary.
(2) The affixing of the seal shall be authenticated by the Chairperson or the ViceChairperson and the Secretary or one other person authorised in that behalf by a
resolution of the Commission.
(3) Any document purporting to be a document under the seal of the Commission or
issued on behalf of the Commission shall be received in evidence and shall be executed
or issued, as the case may be, without further proof, unless the contrary is proved.
2.
(1) A member referred to in subsection (1) of section twenty-two shall be appointed for a
term not exceeding three years in the first instance and subject to his or her performance
and other considerations considered germane by the Public Affairs Committee, be
eligible for re-appointment for another three years term and no more than that.
Provided that the first members of the Commission shall be appointed for periods
ranging from two to three years in order to facilitate retirement by rotation.
(2) A member referred to in subsection (1) may resign upon giving one month’s notice, in
writing, to the National Assembly.
3.
Whenever the office of a member becomes vacant before the expiry of the term of office,
the National Assembly may appoint another person to be a member in place of the
member who vacates the office for the unexpired term of that office.
4.
A member shall be paid such allowances as the Commission may, with the approval of
the National Assembly, determine.
5.
(1) Subject to the other provisions of this Act, the Commission may regulate its own
procedure.
(2) Five members shall form a quorum at any meeting of the Commission.
(3) There shall preside at any meeting of the Commission —
(a) the Chairperson; or
(b) in the absence of the Chairperson, such member as the members present
may elect for the purposes of that meeting
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(4) A decision of the Commission on any question shall be by a majority of the members
present and voting at the meeting and in the event of an equality of votes, the person
presiding at the meeting shall have a casting vote in addition to that person’s deliberative
vote.
(5) The Commission may invite any person, whose presence is in its opinion desirable,
to attend and to participate in the deliberations of the meeting of the Commission, but
such person shall have no vote.
(6) The validity of any proceedings, acts or decisions of the Commission shall not be
affected by any vacancy in the membership of the Commission or by any defect in the
appointment of any member or by reason, that any person not entitled to do so took part
in the proceedings.
6.
(1) The Commission may, for the purpose of performing its functions under this Act,
establish such committees as it considers necessary and delegate to any of those
committees such of its functions as it considers fit.
(2) The Commission may appoint as members of a committee, persons who are, or are
not, members, except that at least one member of a committee shall be a member.
(3) A person serving as a member of a committee shall hold office for such period as the
Commission may determine.
(4) Subject to any specific or general direction of the Commission, a committee may
regulate its own procedure.
7.
(1) If any person is present at a meeting of the Commission or any committee at which
any matter is the subject of consideration and in which matter that person or that
person’s spouse is directly or indirectly interested in a private capacity, that person shall
as soon as is practicable after the commencement of the meeting, declare such interest
and shall not, unless the Commission or the committee otherwise directs, take part in
any consideration or discussion of, or vote on any question touching such matter.
(2) A declaration of interest made under subsection (1) shall be recorded in the minutes
of the meeting at which it is made.
(3) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable
upon conviction to a fine not exceeding ten thousand penalty units or to imprisonment for
a term not exceeding three years or to both. .
PART II
FINANCIAL AND OTHER PROVISIONS
8.
The financial year of the Commission shall be the period of twelve months ending on
30th June in each year.
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9.
(1) The Commission shall cause to be kept proper books of account and other records
relating to its accounts.
(2) The accounts of the Commission shall be audited annually by independent auditor’s
appointed by the Commission.
(3) The auditors’ fees shall be paid by the Commission.
10.
(1) As soon as is practicable, but not later than ninety calendar days after the end of the
financial year, the Commission shall submit to the National Assembly a report
concerning its activities during the financial year.
(2) The report referred to in subsection (1) shall include information on the financial
affairs of the Commission and there shall be appended to the report
(a) an audited balance sheet;
(b) an audited statement of income and expenditure; and
(c) such other information as the National Assembly may require.
SECOND SCHEDULE
PUBLIC AUTHORITIES AND OFFICE HOLDERS TO WHICH THE ACT APPLIES
1.
The Office of the President and all organs of the Executive branch including Ministries,
Departments, Parastatals and other Agencies of Government.
2.
Local authorities and persons in the service of the local authorities.
3.
The National Assembly and Members of Parliament
4.
Courts, tribunals and persons in their service
5.
Institutions and organisations whether established by or under an Act of Parliament or
otherwise, in which the Government holds a majority of shares or exercises financial or
administrative control and persons in the service of those institutions and organisations.
6.
Commissions and persons in the service of those Commissions established by or under
the Constitution or any Act of Parliament.
7.
Quasi-governmental organisations and persons in the service of the quasi-governmental
organisations.
8.
Public corporations and persons in their service.
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9.
Private bodies utilising public funds, performing public functions or providing public
services and persons in their service.
10.
Organisations in receipt of public funds and persons in the service of those
organisations.
11.
Organisations contracted by Government to do work for government and persons in the
service of those organisations.
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