The NEWS (Monrovia)

Liberia: 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

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 country 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.

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