Freedom of Information Act and
Executive Order 38: Issues Emerging from Disclosure Perspective
Presentation at the Liberia Media
Center’s Quarterly Editors and Owners Forum
By Lamii Kpargoi
In recent weeks the rumor mill in Liberia, especially Monrovia has been
rife with all sorts of information. While some of them have a semblance of
true, others are clear lies, which are basically meant to confuse the
population or to serve as propaganda to change the direction of ongoing
debates. Regardless of the motives of such information, they serve no useful
purpose if they are meant to do the latter.
A few weeks ago, I was privileged to be in the audience when Cllr. Tiawan
Gongloe painted a very clear picture of the harm that can be caused by the
failure of government to provide clear and unambiguous information to the
public.
As Cllr. Gongloe noted in his key note address on the International
Right to Know Day, this failure on the part of the William R. Tolbert
government to provide clear information even though there were dangerous rumors
making the rounds in Monrovia in April 1980, led to its overthrow.
We would never know with utmost certainty whether a different tactic on
the information front would have averted the bloody military coup of April
1980. Though the jury is still out on that one, we will agree with the learned
legal luminary that the soldiers intervened because they felt that their
kinsmen were in mortal danger.
At the time of the 1980 coup, there was no freedom of information law
and government was basically seen as the preserve of a small group of people
who jealously guarded their right to remain in charge not by providing clear
information to the population but with the use of strong armed tactics.
Liberia has come full circle. Though we now have a very progressive
freedom of information law, the culture of having a closed government is still very
evident.
Today, hardly anyone runs the risk of physical harm for holding contrary
opinions to those in power, though there is a worrying menace of legitimate debates
being drown out with the use of purchased opinions. These opinions most often
emanate from belly-driven young men and women who cloud the public discourse with
spurious information, most times not germane to the actual issue of contention.
This has to stop as in the long run it can only harm this country!
The reason for this is resource competition and the desire of some
people who control them to jealously guard information they possess regarding
national resources. The view of such people is often than not that the general
population is not sophisticated enough to properly handle information regarding
the distribution and consumption of the national pie.
Such a view point is far removed from the reality. Today the trend in
governance around the world is no longer tilted towards what is depicted in
George Orwell’s Animal Farm and 1984 novels. It is towards participatory
governance and openness.
It was the desire to have open and participatory government that led to the
Liberian legislature passing into law the country’s freedom of information law
in September 2010. It was also a desire to promote this virtue that President
Sirleaf did not hesitate in promptly signing the act in to law on September 16,
2010 at 3:30pm.
The president’s promptness in signing on to the FOI law was because she
recognized its positive contribution to making her government better. She knew
that FOI is key in ensuring that while the governors are governing, the
citizens will be watching and asking the critical questions regarding what is
being done; who is doing it; how it is being done; where it is being done; how
much it costs; and crucially why it was not done or completed.
Because of the president’s clear cut commitment shown with her swift
signing of the FOI law, we were bemused with her inclusion of a “disclosure of
information and release of classified materials” provision in Executive Order #
38 in the quest to laudably “establish an administrative code of conduct for
members of the executive branch of government.”
Some have argued that Part VI of Order 38 is not contrary to the FOI law
using the primacy of law argument. While it might be clear to any legal mind
that a statute is higher than an executive order, the question that follows is
which of the laws would a member of the executive branch of government prefer
to violate: the FOI law or Order 38? Which is more likely to get them fired?
Section 1.7 of the FOI law is quite emphatic in laying this issue to
rest. The section states that “Save for the Constitution, this act is and shall
be the primary law governing the right of access to information, including all
matters related to request for and provision of information in Liberia. No administrative action, order or
regulation contrary to, inconsistent with, or in derogation of this Act shall
issue or be effective in Liberia (emphasis added), and this Act shall
prevail over any and all subsequent inconsistent statutes, except a subsequent
statute that specifically amends or repeals it.”
But in the real world, especially in a county like ours, which does not
have a settled governance culture, this counts for nothing. The fact that there
already existed a legal framework that addresses information dissemination
issues in the country, it was best to avoid sending conflicting signals to
government functionaries by leaving out Part VI and sub-part 10.3 of the order.
What useful purpose does it serve to include within the order provisions
that appear to detract from the FOI law? Was the FOI law not adequate enough to
satisfy the disclosure of information regime Executive Order # 38 sought to
achieve? We do not think so.
Analysis of the Access to
Information Provisions of Executive Order #38
There are several provisions of Executive Order # 38 that tend to either
contradict or confuse the intent of the FOI law and even to some extent the
order itself. It is worth noting that the spirit and intent of the order, from
the plain letter of the law contained in the document, is to establish a code
of conduct for members of the Executive Branch of government. One would assume
that this would contribute rather than take away from the government’s stated
policies elsewhere of transparency and openness in its affairs. But when the
information disclosure provisions of the order are traversed, a picture of a
move towards secrecy emerges in a pronounced way.
Part VI of the Executive Order is titled “Disclosure of Information and
Release of Classified Materials”.
Interestingly, neither this nor sub-part 1.2 defines what falls under
the ambit of classified materials. The entire Part VI of the order, which is
subdivided into nine sub-parts generally, requires public servants to take on a
mantle of total secrecy, something that is totally contrary to the stated
principles in the FOI law.
Executive Order # 38 nebulously speak about confidentiality of
information in sub-part 6.1: “A public servant shall use sensitive and
confidential information that is in their possession or likely to come into
her/his possession only in the performance of her/his official duties or
responsibilities except where such information is criminal in nature or against
public policy. A public servant shall be prudent in discussing sensitive
information with any other public servant or others who are not directly
concerned with the matter in hand.”
Who defines what constitutes confidential information? Is there a set
procedure for declaring something confidential? The FOI law is clear on the
issue of confidentiality and exemptions stating, “Exemption must be justified;
not merely Claimed: A public authority or private entity may not refuse access
to or disclosure of information simply by claiming it as “confidential or
secret.”
In relevant sections, sub-part 6.2 of the Executive Order states: “Non-permissible
Use of Information: A public servant shall not use information in the course of
her/his official duties:
C. To gain improper advantage for himself or herself or for any other
person.
In defining improper advantage, the provision goes on to state in
relevant parts that:
b. Exchanging confidential information with people from other
organizations.
d. Providing information from official records to any unauthorized
person.
This provision is troublesome for several reasons not least among them
being the continuous use of the word confidential as in other provisions of
Part VI. Why doesn’t the government want its functionaries exchanging
information with people from other organizations, like civil society? The
freedom of information law allows anyone walking off the street to request
information of public functionaries. With provision “d” it is clear that the
executive order doesn’t want any ordinary person accessing information as
someone walking off the street would most likely fall within the “unauthorized”
category of people.
Sub-part 6.3 titled “Safeguarding Official Information” of the executive
order states that “A public servant shall maintain a high level of
confidentiality regarding communication of official information in accordance
with government’s policy, the Rules and Procedures of the Civil Service or any
law.”
Why does the government not want its officials communicating official
information about its policies, procedures and laws? Sub-part 6.4b (Use/release
for official purposes only) of the order states that “A public servant shall
not use or communicate official information other than for official purposes
except where such information has already been made available officially to the
public…”
While the FOI has made provisions for an information officer in each
organization that falls under the act in order to channel requests for
information through a central source, the executive order discourages the
release of information in sub-part 6.6. This part of the order states that “A
public servant shall only disclose official information or release documents
acquired in the course of employment when
required by law to do so (emphasis added), it is inherent in the nature of
the position, when called to give evidence in court, or when proper authority
has been given. In all such cases, said disclosure shall be confined to only factual information (emphasis added).”
The FOI law already requires information to be released, why include
this provision? What is the yardstick for determining whether a document speaks
to only facts or there are speculations included?
This provision of the order brings in new variables to the information
disclosure and management regime that were never included by the legislature
when the FOI law was debated and voted into law. What is more worrying is that
the presidency is attempting to render the FOI law irrelevant through an
irregular process when the opportunity existed two years ago to veto the law.
Sub-part 6.6 of the order leaves a lot of issues solely to the
discretion of state officials who tend to generally hold unto information than
abide by the public’s right to be informed.
For its part the FOI law does not allow this latitude of discretion.
Section 2.1 of the law is emphatic that “Every public authority or body shall
establish, maintain, and regularly update a widely accessible and user-friendly
publication scheme whereby the public authority or public body automatically
provides detailed information regarding its core functions, nature of its
activities and operations, and the information it possesses.”
These provisions of the order present an interesting conundrum when
juxtaposed with the FOI’s provisions on exempt information. While the executive
order seems to suggest that anything can be deemed as sensitive, or classified,
the FOI has a limited number of things that it designates as exempt. Even for
the category of exempt document/information under the FOI, the determination to
provide the information is not left to the discretion of a public official; it
is ultimately a judicial process that determines whether the information is
exempt.
Finally ladies and gentlemen, let us draw your attention to an asset
declaration provision of Order 38. In our view, this is one of the major
reasons behind the crafting of the order, but as we’ve seen throughout Part VI,
the Executive has once more brought in access to information restrictions.
In relevant parts, the Executive has ones more relied on the undefined
parameters of confidentiality and classification to render the FOI law
irrelevant here. I quote Sub-part 10.3 “Confidentiality of Declaration: The
LACC shall treat each declaration as classified information and as such only
authorized personnel of the commission shall have access to the contents of the
declaration....”
Section 4.8 of the FOI clearly states that “Exemption must be justified;
not merely claimed: A public authority or private entity may not refuse access
to or disclosure of information simply by claiming it as confidential or
secret”.
But interestingly sub-part 10.3 seems to contradict the “when required by law to do so” provision
contained in sub-part 6.6 of the order. The FOI law already requires public
functionaries to disclosed information unless they fall within one of the
predefined exemptions.
The controlling question here to justify exemption, is whether the
information contained in the asset declaration documents in anyway fall within
the narrow exemptions allowed under the freedom of information law? Are they of
national defense or international relations significance? Are they trade
secrets? Are they part of an ongoing criminal investigation? Are they personal,
private records?
The answers to these questions can be clearly found in the FOI regime.
Instead of the Executive including a provision in Order 38 which tends to
undermine the existing frame work around this issue, it should have left this
issue to be governed by the FOI statute.
Executive Order #38’s information disclosure provisions are greatly
peppered with direct and indirect provisions that undermine the government’s
stated desire to run an open and transparent regime and in the process build
the confidence of the Liberian people in the workings of the state. In the face
of the FOI law, Executive Order # 38 runs totally contrary to the Government’s
stated pledge to abide by the right to information as spelled out in the
Constitution of Liberia and the Universal Declaration of Human Rights.
