Bill Watch 40/2019 [The Freedom of Information Bill]
30 July 2019
While public bodies should not have a general discretion to refuse access to
information, as they have under AIPPA, nonetheless the grounds on which
the Bill allows access to be refused should be extended ‒ for example:
ZIMSEC should not be obliged to disclose answers to exam questions
[This is covered in the First Schedule to AIPPA]
There should be no disclosure of information about court proceedings
which the court has ordered should not be disclosed [clause 6(b)
makes this provision only in relation to victim-friendly courts].
On the other hand, clause 6(a), which allows the non-disclosure of “the
deliberations or functions of the Cabinet and its committees” is too wide: the
functions of Cabinet and its committees are a matter of legitimate public
interest. And even information on the deliberations of Cabinet should be
disclosed after the lapse of a certain time.
Public bodies which receive requests for information that they do not have
should be required to transfer the requests to another public body which
does have the information, and the person requesting the information should
be informed accordingly.
Clause 26, which allows public bodies to refuse access to privileged
information, seems to have been drafted on the assumption that medical
doctors can legally refuse to disclose information about their patients, i.e.
that the information is protected by professional privilege. That is not so:
under our common law professional privilege covers only lawyers in relation
to information given to them by their clients, and a similar privilege has been
extended to journalists by section 61(2) of the Constitution.
Clause 8(5) of the Bill states that any information provided under the Bill is
“presumed to be true and accurate in every respect”. This suggests that
public bodies and officials cannot lie or even be mistaken ‒ a startling
proposition in Zimbabwe.
The Bill makes no provision for an appeal against decisions of the Zimbabwe
Media Commission under the Bill. If the Commission is the right body to
hear appeals under the Bill – and that’s a big if – then there should be a
further appeal to a court, perhaps the Administrative Court. Alternatively the
Bill should set up an independent body such as the South African
Information Regulator, which is empowered to monitor and enforce
compliance by public and private bodies with that country’s Promotion of
Access to Information Act and Protection of Personal Information Act.
The repeal of AIPPA, while welcome, may be premature because AIPPA deals
with more than just access to information: it also regulates the collection of
information by public bodies and the protection of that information against
misuse. AIPPA should not be repealed before new legislation is enacted to
replace those provisions.
Conclusion
The Bill obviously needs a great deal of refinement and further consideration,
and hopefully it will receive the necessary consideration as it progresses