Access denied

Right to information remains off limits to many

By Zahid Abdullah

More things change, more they remain the same. This cannot be more applicable to anything than our bureaucracy. Perennially subservient to its masters, whether political or dictatorial variety, it refuses to be open and transparent in its functioning. This is ostensibly done on the pretext of following rules and obeying the dictates of the rulers. Loot and plunder the public money and then cite the rules if the information is sought about the way public money is spent seems to be the order of the day as far as the nexus between the corrupt is concerned.

Preoccupation of print and electronic media with putting to microscopic scrutiny deeds of politicians has resulted in devoting far less attention to those of the bureaucrats. While politicians as elected representatives will always have greater visibility and accessibility, and, therefore, will be subjected to greater level of public scrutiny, we will have to find ways and means for greater public accountability of invisible and elusive bureaucrats.

One way of promoting public accountability of elected and public representatives is putting in place right to information law under which a mechanism laid down for providing information to citizens on demand as well as making information public through proactive disclosure. Over 100 countries have enacted such laws.

Closer at home, Bangladesh and India have enacted effective information laws, especially the one in India is being used as a powerful tool to make politicians and bureaucrats accountable and check corruption. Our bureaucracy could not remain aloof to the demands for an information law. However, it came up with a very weak law in the shape of Freedom of Information Ordinance 2002 and whatever effectiveness it had was watered down through its subordinate rules which were framed in 2004.

Whenever yours truly sought information using this law, bureaucrats denied information requests paddling excuses which one does not know whether to call them flimsy or pathetic or both. Same happened to the information request filed by Mukhtar Ahmed Ali, a citizen based in Islamabad. On January 13, 2010, he filed an information request to Federal Bureau of revenue (FBR) under Freedom of Information Ordinance 2002 asking the FBR to provide certified information about the names, addresses and the fee paid to the lawyers by FBR to represent it in courts from January 1, 2004 to December 21, 2009. On February 22, 2010, FBR provided an answer in one liner: "The required information does not come within the ambit of section 7 of Freedom of Information Ordinance 2002".

On the intervention of Federal Ombudsman, FBR explained its position on March 4, 2010 and took the plea that the requested information was part of file noting which were exempted under the FIO. (Interestingly, the requester had sought access to the contracts between lawyers and FBR and had never demanded file notings in the first place). FBR also maintained that "it invaded the privacy of the individual. "The constitution of Pakistan gives protection to the privacy of individuals and the complainant is desirous of violating this fundamental right". No one can claim right to privacy when paid from public funds but look at the great lengths FBR bureaucracy is willing to go, even invoking constitution of the country, to protect information about the fee it paid to the lawyers from public funds.

No wonder, the Federal Tax Ombudsman after hearing both parties on May 10, 2010, in its finding said, "The requested information falls in the category of public record," and that "FBR is wrong in presuming that complainant is requesting information which is excluded under section 8(a) of FOI Ordinance." Since decisions of Federal Tax Ombudsman are recommendatory in nature, therefore, it recommended FBR to provide information to requester within 21 days. Instead of compliance, the FBR chose to file representation to the President of Pakistan and prayed him to set aside the information request "in the name of law".

A similar information request was submitted to the ministry of law and justice by yours truly in May 2008 asking certified copy of the list of names and addresses of the lawyers hired by the ministry to represent the Federal Government in the Supreme Court and the fee paid to each lawyer. The grounds on which the requested information was denied were even flimsier. The Ministry commented to the Ombudsman that "if the required information is provided to the applicant, the same would create unnecessary problems and will open a Pandora's Box…" The information request was termed as "indirect interference into the working of the government".

Politicians need to make bureaucratic functioning open and transparent by making bureaucracy subservient to the will of people. The government is moving in the right direction as it is in the process of finalising the draft of Freedom of Information Bill 2010. Bureaucracies in Bangladesh an India, still prisoners of the past and living in colonial era, resisted the enactment of right to information laws and our bureaucracy is not going to be any exception.

The challenge for politicians will be to sift bureaucratic shenanigans from legitimate concerns as they finalise the Freedom of Information Bill 2010. Their counterparts in India held bureaucrats at bay and sought an acted upon expert advice from the right to information activists. Congress party is still reaping dividends for enacting a powerful right to information law and hopefully this fact is not lost to the present government.