AN
ACT
to provide for
ensuring transparency and access to information in the Province of the Khyber
Pakhtunkhwa.
WHEREAS Article
19A of the Constitution of the Islamic Republic of Pakistan provides that every
citizen shall have the right to access to information in all matters of public
importance, subject to regulation and reasonable restrictions imposed by law;
AND WHEREAS
transparency of information is vital to the functioning of democracy and also
to improve governance, reduce corruption, and to hold Government, autonomous
and statutory organizations and other organizations and institutions run on
Government or foreign funding, more accountable to its citizens and for matters
connected therewith and incidental thereto;
AND WHEREAS it
is essential that citizens shall have right to information to participate
meaningfully in a democratic process and further to improve their involvement
and contribution in public affairs;
It is hereby enacted as follows:-
1.
Short title, extent and commencement.---(1) This Act
may be called the Khyber Pakhtunkhwa Right to Information Act, 2013.
(2)
It extends to the whole of the Province of the Khyber
Pakhtunkhwa.
(3)
It shall come into force at once.
2.
Definitions.---In this Act, unless there is anything
repugnant in the subject or context,-
(a)
“complaint” means any allegation in writing made by or
on behalf of a requester that his request for information has not been dealt
with by a public body in accordance with the rules and procedures set out in
this Act, including where he has been wrongfully denied access to all or part
of that record;
(b)
“designated officer” means an officer of a public body
designated under section 6 of this Act;
(c)
“employee or official” in relation to a public body
means a person employed in a public body whether permanently or temporarily and
includes consultants;
(d)
“Government” means the Government of the Khyber
Pakhtunkhwa;
(e)
“information” means material which communicates meaning
and which is held in recorded form;
(f)
“Information Commission” means the Khyber Pakhtunkhwa
Information Commission established under section 24 of this Act;
(g)
“prescribed” means prescribed by rules made under this
Act;
(h)
“Province” means the Province of the Khyber
Pakhtunkhwa;
(i)
“Public body” means:
(i)
any department or attached department of the
Government;
(ii)
Secretariats of Chief Minister and Governor of the
Khyber Pakhtunkhwa;
(iii)
Secretariat of the Provincial Assembly, Khyber
Pakhtunkhwa alongwith the Members of the Assembly and the Assembly itself;
(iv)
any Office, Board, Commission, Council or any other
Body
established by, or
under, any law;
(v)
subordinate judiciary i.e. Courts of District and
Sessions Judges, Courts of Additional District and Sessions Judges, Courts of
Senior Civil Judges, Courts of Civil Judges and Courts of Magistrates;
(vi)
Tribunals;
(vii)
anybody which is owned, controlled or substantially
funded by one of the above, including enterprises owned by the Province; and
(viii) any
other body which undertakes a public functions;
(j)
“record” means information which is recorded in any
form;
(k)
“request for information” shall include a request for
information and a request for a specific record;
(l)
“requester” means any citizen, who has made a request
for information under this Act; and
(m)
“third party” means a person other than the person
making a request for information or a record.
3.
Right to information.---(1) Every citizen shall subject
to the provisions of this Act and any rules made under it, have the right to
access any information or record held by a public body.
(2)
Notwithstanding anything contained in any other law for
the time being in force, and subject to the provisions of this Act, no
requester shall be denied access to any information or record.
(3)
This Act shall be interpreted so as,-
(a)
to advance the purposes of this Act; and
(b)
to facilitate and encourage, promptly and at the lowest
reasonable cost, the disclosure of information.
4.
Maintenance and indexing of records.---Subject to the
provisions of this Act and in accordance with the rules as may be prescribed,
each public body shall ensure that all of the records which it holds are
properly maintained, including so as to enable it to comply with its
obligations under this Act, and in accordance with any relevant rules or
standards established by the Information Commission.
5.
Publication and availability of records.---(1) The
following categories of information shall be duly published by public bodies in
an up-to-date fashion and in a manner which best ensures that they are
accessible to those for whom they may be relevant, including over the Internet,
subject to reasonable restrictions based on limited resources:
(a)
Acts and subordinate legislation such as rules,
regulations, notifications, bye-laws, manuals and orders having the force of
law in the Province, including being made available at a reasonable price at an
adequate number of outlets to ensure reasonable access by the public;
(b)
information about the public body, including its
organization, functions, duties, powers and any services it provides to the
public;
(c)
a directory of its officers and employees, including a
description of their powers and functions and their respective remunerations,
perks and privileges;
(d)
norms and criteria set by the public body for the
discharge of its functions, including any rules, manuals or policies used by
its employees to this end;
(e)
a description of its decision making processes and any
opportunities for the public to provide input into or be consulted about
decisions;
(f)
relevant facts and background information relating to
important policies and decisions which are being formulated or have been made
and which affect the public;
(g)
a detailed budget of the public body, including
proposed and actual expenditures;
(h)
details about any subsidy or benefit programmes
operated by the public body, including details about the amount or benefits
provided and the beneficiaries;
(i)
particulars of the recipients of concessions, permits,
licences or authorizations granted by the public body;
(j)
the categories of information held by the public body;
(k)
a description of the manner in which requests for
information may be made to the public body, including the name, title and
contact details of all designated officers; and
(l)
such other information as may be prescribed.
(2)
Public body shall also publish an annual report on what
they have done to implement their obligations under this Act, which shall
include detailed information about the requests for information which they have
received, and how they have processed these requests.
(3)
The annual report under sub-section (2) shall be
formally forwarded to Speaker Provincial Assembly of Khyber Pakhtunkhwa and to
the Information Commission, who shall take such action on the report as they
may deem appropriate.
6.
Designation of official.---(1) On commencement of this
Act, a public body shall within a period of one hundred and twenty (120) days,
designate and notify an officer to act as designated officer for the purposes
of this Act, with whom request for information under this Act may be lodged.
(2)
In case no such official has been designated or in the
event of the absence or non availability of the designated officer, the person
in charge of the public body shall be the designated officer.
(3)
The designated officer shall be responsible for
ensuring that requests for information are dealt in accordance with this Act
and generally for promoting full compliance by the public body with its
obligations under this Act.
7.
Request for information.---(1) Subject to the
provisions of this Act, every citizen may lodge a request for information with
a public body through the designated officer.
(2)
A request for information shall be made in writing and
lodged in any manner in
which the public body has the facilities to receive it,
including in persons, by mail, by fax or by email.
(3)
Any written request for information which identifies
the information or record sought in sufficient detail to enable the public body
to locate it, and which includes an address for delivery of the information or
record, shall be treated as a request for information.
(4)
Subject to sub-section (3), a public body may provide
an optional form for making requests for information, with a view to assisting
requesters to make request.
(5)
In no case shall a requester be required to provide
reasons for his request.
(6)
Where a request for information is received by a public
body, the requester shall be provided with a receipt acknowledging the request,
including the date and name of the official responsible for processing it.
8.
Assistance to requesters.---(1) A designated officer
shall take all reasonable steps to assist any requester who needs such
assistance.
(2)
In particular, a designated officer shall assist any
requester who is having problems describing the information sought in
sufficient detail to enable the public body to locate that information, or who
needs held due to disability.
(3)
Where a requester is unable to provide a written
request, a designated officer shall reduce the request into writing, and
provide the requester with a signed, date copy of it.
9.
Where information is not held.---(1) Where a public
body does not hold information or records which are responsive to a request,
and it is aware of another public body which does hold the information, it
shall forward the request to that public body, and it shall inform the
requester of this.
(2)
Where a public body does not hold information or
records which are responsive to a request, and it is not aware of any other public
body which does, it shall return the request to the requester, informing him of
this.
10.
Procedure for disposal of requests.---(1) A designated
officer shall provide a written notice in response to a request for
information.
(2)
The notice shall indicate that:
(a)
the request has been accepted and the requester is
entitled to receive the information or record, subject to the payment of any
applicable fee; or
(b)
the request has been rejected on the basis that it does
not comply with the rules relating to such requests, but only after assistance
has been offered to the requester in accordance with section 8; or
(c)
the request has been rejected on the basis that the
information is already available in published form, including in the official
Gazette or in another generally accessible form, such as a book, in which case
the notice shall direct the requester to the place where the information may be
found; or
(d)
the request has been rejected on the basis that it is
vexatious, including because it relates to information which is substantially
the same as information that has already been provided to the same requester;
or
(e)
the request has been rejected, in whole or in part, on
the basis that the information is exempt, in which case the notice shall specify
the exact exception relied upon and include details regarding the right of the
requester to appeal against this decision.
(3)
Where information or a record is provided in accordance
with clause (a) of subsection (2), it shall be accompanied by a certificate,
which may be affixed to the information or record at the foot thereof, as
appropriate, to the effect that the information is correct or, as the case may
be, the copy is a true copy of such public record, and such certificate shall
be dated and signed by the designated officer.
11.
Time line for responding.---(1) Subject to the
provisions of this Act, a public body shall be required to respond to a request
for information in accordance with section 7 as soon as possible and in any
case within ten working days of the receipt of request.
(2)
The period stipulated in sub-section (1), may be
extended by a maximum of a further ten working days where this is necessary
because the request requires a search through a large number of records or
records located in different offices, or consultation with third parties or
other public bodies.
(3)
Information needed to protect the life or liberty of
any individual will be provided within two working days.
12.
Form for providing information.---Where an applicant
has indicated a preferred means for accessing information, such as a physical
copy (attested), an electronic copy or an opportunity to inspect certain
records, the public body shall provide access in that form unless to do so
would unreasonably interfere with its operations or harm the document.
13.
Fees for requests.---(1) It shall be free to lodge
requests for information.
(2)
Fees may be charged for the actual costs of reproducing
information and sending it to the requester, in accordance with any schedule of
fees which may be adopted by the Information Commission.
(3)
No fee shall be charged for the first twenty pages of
information provided, or where the requester is below the poverty line.
14.
Exempt information.---A public body shall not be
required to disclose information which falls within the scope of the exceptions
provided for in sections 15 to 21 of this Act, provided that:
(a)
exceptions in other laws (secrecy provisions) may not
extend the scope of the exceptions in this Act, although they may elaborate on
an exception that is provided for in this Act;
(b)
the fact that information has been classified is
irrelevant to the question of whether or not it falls within the scope of the
exceptions provided for in this Act, which must always be accessed directly, at
the time of a request, based on clear and objective considerations;
(c)
where only part of a record or the information falls
within the scope of the exceptions provided for in this Act, that part shall be
severed and the rest of the record or information shall be provided to the
requester;
(d)
even where information falls within the scope of an
exception provided for in this Act, the information shall still be provided to
the requester where, on balance, the overall public interest favours disclosure
of the information;
(e)
for the purposes of clause (d), there shall be a strong
presumption in favour of the disclosure of information that exposes corruption,
criminal wrongdoing, other serious breaches of the law, human rights abuse, or
serious harm to public safety or the environment; and
(f)
the exceptions set out in sections 15 to 18 of this
Act, shall cease to apply after a period of twenty years, provided that this
may be extended, in exceptional cases, for up to a maximum of another fifteen
years, with the approval of the Information Commission.
15.
International relations and security.---A public body
may refuse a request for information the disclosure of which would be likely to
cause grave and significant harm to international relations or national
security.
16.
Disclosure harmful to law enforcement.---A public body
may refuse a request for information the disclosure of which would be likely
to:
(a)
result in the commission of an offence;
(b)
harm detection, prevention, investigation, inquiry or
prosecution in relation to an offence, or the apprehension of an offender;
(c)
reveal the identity of a confidential source of
information in relation to an investigation;
(d)
facilitate an escape from legal custody; or
(e)
harm the security of any property or system, including
a building, a vehicle, a computer system or a communication system.
17.
Public economic affairs.---A public body may refuse a
request for information the disclosure of which would be likely to:
(a)
cause grave and significant damage to the economy as a
result of the premature disclosure of the proposed introduction, abolition or
variation of any tax, duty, interest rate, exchange rate or any other
instrument of economic management; or
(b)
cause significant damage to the legitimate financial
interests of the public body, including by giving an unreasonable advantage to
any person in relation to a contract which that person is seeking to enter into
with the public body or by revealing information to a competitor of the public
body.
18.
Policy making.---A public body may refuse a request for
information the disclosure of which would be likely to cause serious prejudice
to the deliberative process in a public body by inhibiting the free and frank
provision of advice or exchange of views, or cause serious prejudice to the
success of a policy through premature disclosure of that policy.
19.
Privacy.---(1) A public body may refuse a request for
information the disclosure of which would encroach on the privacy of an
identifiable third party individual, other than the requester, including an
individual who has been deceased for less than twenty years.
(2)
The exception in sub-section (1) shall not apply where:
(a)
the third party has effectively consented to the
disclosure of the information; or
(b)
the person making the request is the guardian of the
third party, or the next of kin or the executor of the will of a deceased third
party; or
(c)
the third party is or was an official of a public body
and the information relates to his function as a public official.
20.
Legal privilege.---A public body may refuse a request
for information which is privileged from production in legal proceedings,
unless the person entitled to the privilege has waived it.
21.
Commercial and confidential information.---A public
body may refuse a request for information if the information:
(a)
was obtained from a third party and to communicate it
would constitute an actionable breach of confidence; and
(b)
was obtained in confidence from a third party and it
contains a trade secret or to communicate it would be likely to seriously
prejudice the commercial or financial interests of that third party.
22.
Third parties.---(1) Where a request for information
relates to information or a record provided on a confidential basis by a third
party, the public body shall endeavour to contact that third party with a view
to obtaining either his consent to disclosure of the information or record or
his objections to disclosure.
(2)
Where a third party objects to disclosure, his
objections shall be taken into account, but the decision as to whether or not
the information falls within the scope of the exceptions in this Act shall be
assessed by the public body on the basis of objective considerations.
23.
Complaints.---(1) Anyone who believes that his request
has not been dealt in accordance with the provisions of this Act has the right
to lodge a complaint with the Information Commission to this effect.
(2)
Complaints under sub-section (1) shall be free of
charge.
(3)
The Information Commission shall decide any complaint
within a period of sixty (60) days.
(4)
In an appeal, the public body shall bear the burden of
proof of showing that it acted in accordance with the provisions of this Act.
24.
Information Commission.---(1) On the commencement of
this Act, Government shall within a period of one hundred and twenty (120)
days, establish a Information Commission to be known as the Khyber Pakhtunkhwa
Information Commission.
(2)
The Information Commission shall be an independent
statutory body, which shall enjoy operational and administrative autonomy from
any other person or entity, including Government and any of its agencies,
except as specifically provided for by law.
(3)
The Information Commission shall be headed by the Chief
Information Commissioner, who shall be a retired Senior Government Servant not
below the rank of BPS-20 and shall be appointed by Government.
(4)
The Information Commission shall comprise of three
other Members to be known as Commissioners, who shall be appointed in the
following manner:
(a) one Advocate of High Court or Supreme
Court, who is qualified to be a Judge of High Court; and
(c) A person
from civil society having experience of not less than fifteen years in the
field of mass communication, academic or right to information.
(5)
The Chief Information Commissioner and the
Commissioners shall hold office for a term of three years from the date on
which they assume office and shall not be eligible for reappointment.
(6)
Notwithstanding anything contained in sub-section (5),
the Chief Information Commissioner and Commissioners shall not hold office
after they have attained the age of sixty-five (65) years.
(7)
A Commissioner may not hold any other public office, or
be connected with any political party or be running any business or pursuing
any profession at the time of or during their appointment to the Information
Commission.
(8)
A Commissioner may be removed by a positive vote of not
less than two of the other Commissioners on grounds of failure to attend three
consecutive meetings of the Information Commission without cause, inability to
perform the duties of a Commissioner, falling foul of the conditions for being
a Commissioner as set out in sub-section (6), or conduct which is materially
inconsistent with the status of being a Commissioner, provided that a
Commissioner who has been removed pursuant to this sub-section shall have the
right to appeal that removal before the courts.
25.
Functions of the Information Commission.---(1) The
Information Commission shall have a primary responsibility to receive and decide
on complaints.
(2)
The Information Commission shall, in addition to its
complaints function, conduct the following activities:
(a)
set rules and minimum standards regarding the manner in
which public bodies are required to manage their records, in accordance with
section 4 of this Act;
(b)
designate further categories of information which may
be subject to proactive disclosure, in accordance with sub-section (l) of
section 5 of this Act;
(c)
adopt a schedule of the fees that public bodies may
charge for providing information to requesters, in accordance with sub-section
(2) of section 13 of this Act;
(d)
approve or reject extensions to the maximum period that
information may be kept confidential, in accordance with clause (f) of section
14 of this Act;
(e)
compile a user-friendly handbook, in Urdu and English,
describing in easily comprehensible form the rights established by, and how to
make a request for information under, this Act;
(f)
refer to the appropriate authorities cases which
reasonably disclose evidence of criminal offences under this Act;
(g)
compile a comprehensive annual report both describing
its own activities, including an overview of its audited accounts, and
providing an overview of the activities undertaken by all public bodies to
implement this Act, taking into account the information provided by individual
public bodies pursuant to sub-section (2) of section 5 of this Act; and
(h)
have an accredited accountant conduct an audit of its
accounts on an annual basis, and provide a copy of its audited accounts to the
Provincial Assembly and the Department of Finance.
(3)
The Information Commission shall have the power to:
(a)
monitor and report on the compliance by public bodies
with their obligations under this Act;
(b)
make recommendations to Government for reform both of a
general nature and in relation to specific public bodies;
(c)
make formal comments on any legislative or other legal
proposals which
affect the right to information;
(d)
co-operate with or undertake training activities for
public officials on the right to information and the effective implementation
of this Act; and
(e)
publicize the requirements of this Act and the rights
of individuals under it.
26.
Powers of the Information Commission.---(1) The
Information Commission shall have all powers, direct or incidental, as are
necessary to undertake its functions as provided for in this Act, including
full legal personality, and the power to acquire, hold and dispose of property.
(2)
The Information Commission shall also have the power to
conduct inquiries, in relation to either a complaint or other matters connected
with the proper implementation of this Act, and when conducting such an
inquiry, the Information Commission shall have the powers of a Civil Court
under Code of Civil Procedure (CPC), 1908 in respect of the following matters:
(a)
summoning and enforcing the attendance of witnesses and
compelling
them to give oral or written
evidence under oath;
(b)
requiring public bodies and to produce documents or
things;
(c)
inspect the premises of public bodies; and
(d)
examining and inspecting information.
(3)
When deciding a complaint, the Information Commission
shall have the following powers:
(a)
to order a public body to disclose information to a
requester or to take such other reasonable measures as it may deem necessary to
compensate a requesters for any failure to respect the provisions of this Act;
(b)
to impose a daily fine of up to Rs. 250 per day, up to
a maximum of Rs. 25,000, on any official who has acted willfully to obstruct
any activity which is required to be undertaken by this Act, including with a
view to preventing or delaying the disclosure of information to a requester;
and
(c)
to require a public body to take such general measures
as may be required to address systematic failures to respect the provisions of
this Act, including by appointing a designated officer, by conducting training
for its employees, by improving its record management, by publishing
information on a proactive basis and/or by preparing and publishing an annual report.
(4)
A decision of the Information Commission under
sub-section (3) shall, if it has not been appealed against within 30 days, be
registered with the court and any failure to respect the decision shall be
dealt with in the same way as any contempt of court.
27.
Funding for the Information Commission.---(1)
Government shall make such a budgetary allocation to the Information Commission
as it may require to discharge its responsibilities effectively, including by
establishing a secretariat and hiring the requisite staff to enable it to
conduct its business properly, and shall provide the funds indicated through a
reasonable schedule of payments throughout the year.
(2)
For purposes of implementing sub-section (1), the
Information Commission shall present a budget proposal to Government.
(3)
The Chief information Commissioner and Commissioners
shall be entitled to such remuneration and allowances as the Government may
determine.
28.
Offence.---(1) It is a criminal offence willfully to:
(a)
obstruct access to any record with a view to preventing
the exercise of a right provided for in this Act;
(b)
obstruct the performance by a public body of a duty
under this Act;
(c)
interfere with the work of the Information Commission;
or
(d)
destroy a record without lawful authority.
(e)
Use the information obtained for malafide purposes with
ulterior motives with facile, frivolous design.
(2)
Anyone who commits an offence under sub-section (1),
shall be liable to a fine not exceeding rupees fifty thousand (50000) or
imprisonment for a period not exceeding two years.
29.
Indemnity.---No one may be subject to any legal,
administrative or Employment-related sanction for anything which is done in
good faith or intended to be done in pursuance of this Act or any rules made
there under.
30.
Whistleblowers.---(1) No one may be subject to any
legal, administrative or employmentrelated sanction, regardless of any breach
of a legal or employment obligation, for releasing information on wrongdoing, or which would disclose a serious
threat to health, safety or the environment, as long as they acted in good
faith and in the reasonable belief that the information was substantially true
and disclosed evidence of wrongdoing or a serious threat to health, safety or
the environment.
(2)
For purposes of sub-section (1), wrongdoing includes
the commission of a criminal offence, failure to comply with a legal
obligation, a miscarriage of justice, corruption or dishonesty, or serious
maladministration regarding a public body.
31.
Power to remove difficulties.---If any difficulty
arises in giving effect to the provisions of this Act, Government may, by order
in the official Gazette, make such provisions not inconsistent with the
provisions of this Act as appear to it to be necessary or expedient for
removing the difficulty.
32.
Power to make rules.---Government in consultation with
the Information Commission may, by notification in the official Gazette, make
rules for carrying out the purposes of this Act.
33.
Repeal.--- The
Khyber Pakhtunkhwa Right to Information Ordinance, 2013 (Khyber Pakhtunkhwa
Ordinance No. VII of 2013) is hereby repealed.
BY ORDER OF MR.
SPEAKER
PROVINCIAL ASSEMBLY OF KHYBER
PAKHTUNKHWA
_____________________________________________________________________________
(AMANULLAH)
Secretary
Provincial Assembly of Khyber Pakhtunkhwa
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