Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
On Appeal Expands Expression
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On 4 December 2018, the Right to Information Commission held that the authorities had a legal duty to disclose financial information of the country’s Prime Minister. The case concerned a 2017 request from Transparency International Sri Lanka to the Presidential Secretariat to disclose documents of assets and liabilities of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe for the years 2015 and 2016. The Secretariat rejected the request citing a range of reasons, including privacy and a lack of a legal duty to provide these documents. The Right to Information Commission disagreed and in doing so highlighted the legal supremacy of the 2016 Right to Information Act and the principles of disclosure that it established. Regrettably, the Commission held that Sri Lanka’s legislation exempted the President of Sri Lanka from declaring his/her assets and liabilities. Nonetheless, the Commission highlighted a growing trend for Heads of State to proactively declare their finances, and recommended that steps should be taken to ensure such transparency in Sri Lanka.
On 3 February 2017, Transparency International (TI) Sri Lanka, filed two information requests to the Presidential Secretariat for certified copies of the Declaration of Assets and Liabilities of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe for the years 2015 and 2016.
The request was made under Section 24 (1) of the 2016 Right to Information Act that grants all citizen the right to submit a written request for information to the appropriate “information officer.” TI submitted the two information requests to the Secretary to the President because it was unable to obtain the name(s) of the appropriate information officers.
On 6th March 2017, the information officer at the Office of the Secretary to the President refused TI’s request on the basis that the Speaker of Parliament had ruled that a person or an organization was not entitled to receive information relating to the Declarations of Assets and Liabilities of Members of Parliament under the provisions of the RTI Act.
The refusal was upheld by the Designated Officer at the Secretary to the President on 20 March 2017 on the basis of Sections 5(1)(a) and 5(1)(g) that allowed information requests to be refused for the protection of privacy and confidentiality of fiduciary relationships, respectively.
TI appealed the refusal to Sri Lanka’s Right to Information Commission on 19 May 2017. It argued that the Information Officer failed to cite a legally permissible reason to refuse the information request. Further, the Designated Officer merely referenced the RTI Act and failed to explain the specific grounds for the refusal.
Moreover, citing the Indian judgment Lok Prahari Through Its General Secretary S.N. Shukla V Union of India And Others WP (C) 784 of 2015, TI argued that “asset declarations enables citizens to access information that would help them make rational choices and which is absolutely fundamental to a functioning democracy.” [p. 6]
On the issue of privacy, TI referenced the European Court of Human Rights judgment in Wypych v. Poland (25 October, 2005, application no. 2428/05) where the Court held that asset disclosure of local councilors did “not amount to an over burdensome incursion into privacy and even though the information comes within the domain of privacy, such privacy is not an absolute right, and the limitation experienced by the individual was warranted given the public interest at large.” [p.6]
On 4 December 2018, The Right to Information Commission issued a decision in which it agreed with TI that the RTI Act imposed a duty to disclose a declaration of assets and liabilities of Prime Minister Ranil Wickremesinghe. However, it found that no law imposed a similar duty on the President of Sri Lanka.
The Commission first emphasized that the RTI Act established a duty to show that an information request has been seriously considered and that the refusal has been in accordance with the statutory duty of the Designated Officer. It added that a mere reference or a citation of a section of the RTI Act did not satisfy this duty. The Commission explained that the duty to give ‘specific grounds’ for rejection was in accordance with the paramount importance of the right to know, enshrined in Article 14A of the Constitution. Further, the Commission reiterated that the overreaching purpose of the right to information was “to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and to hold the governors accountable to the governed.” [p.9]
Re: Certified Copy of the Declaration of Assets and Liabilities Prime Minister Ranil Wickremesinghe for the years 2015 and 2016.
The Commission clarified that Sri Lanka enacted a specific law, the Declaration of Assets and Liabilities Law, No. 1 of 1975 (DALL) for submissions of Declarations of Assets and Liabilities by specified categories of persons. This Law established who was statutorily required to give such declarations and to whom they may be given. This law provided extra clarity to the disclosure of declarations of assets and liabilities in the context of right to information.
Section 4 (a) of the DALL stated that speakers of parliament, ministers, judges, and other public officers must declare their assets and liabilities to the President of Sri Lanka. Section 4 (b) obliged all members of parliament, not covered by Section 4(a) to disclose their assets and liabilities to the Speaker of the Parliament.
The Commission then recalled that the Secretary to the President never claimed that it did not possess the declaration of assets and liabilities of the Prime Minister. At the same time, the Secretary argued that under the DALL the Designated Officer was not recognized as an appropriate authority and thus had no possession, custody and control to hand over the requested information to any citizen under the RTI Act.
However, the Commission dismissed this argument, highlighting that Sections 5 and 8 of the DALL permitted certain individuals, officers and even ordinary citizens to obtain declarations of assets and liabilities, after paying a fee. As to who carried the responsibility of disclosing such declarations, the Commission outlined that the powers, duties and responsibilities of the President prescribed in the Constitution are vested on the President’s Office, rather than to the individual who holds it. Thus, as far as the possession, custody or control of declarations of assets and liabilities, the office of the President at large, regardless of the individual who holds that office, was in possession of such declarations. The Presidential Secretariat provided administrative and institutional framework for the exercise of the duties, responsibilities and powers vested in the President. The Commission thus held that the Presidential Secretariat was in lawful possession, custody and control of all declarations of assets and liabilities submitted to the President.
The Commission then addressed the question of whether the disclosure of the asset declaration of a high ranking elected official such as the Prime Minister served the interest of the public. Referring to its own and Indian jurisprudence, the Commission highlighted that elected officials, and in some cases un-elected officials, were subjected to higher levels of public scrutiny (Union of India (UOI) v. Association for Democratic Reforms and Another). The Commission explained that the object of the RTI Act and the DALL was to bring more accountability to public officials, but that they approached this objective in vastly different ways. For instance, the principle of maximum disclosure was embodied in the RTI Act.
The Commission then analyzed how to deal with this legal discrepancy and concluded that the “later law takes precedence and the conflicting parts of the earlier law becomes inoperable.” (Churchwardens of West Ham v. Fourth City Mutual Building Society) [p.15] Further, the Commission held that allowing other laws to supersede provisions of the RTI Act would ultimately render it ineffective. For this purpose, Section 4 of the RTI Act included language stating that it would prevail in the event of any legal inconsistency or conflict. Moreover, the Commission found that applying Section 4 to its fullest extent was important for the achievement of “a culture of transparency and accountability.” The Commission highlighted that the RTI Act was “a powerful check to be exercised on even potential corruption as this would deter those otherwise enticed to amass public wealth for themselves.” [p. 16]
As for limitations on disclosure under Section 5, the Commission stressed that an important factor to consider was the public interest exception that outweighed complaints of an unwarranted invasion of privacy. Furthermore, Section 6 of the RTI Act allowed certain information to be redacted if it did not serve the purposes of the disclosure, and sufficiently safeguarded the privacy rights.
Re: Certified Copy of the Declaration of Assets and Liabilities of President Maithripala Sirisena for the years 2015 and 2016.
The Commission highlighted that DALL exempts the President of Sri Lanka from declaring his/her assets and liabilities, although presidential candidates must declare such information. Given that there is no law which requires the President to make a declaration of assets and liabilities, the Presidential Secretariat would not be in the possession of such information. The election commission also did not have this information, since in 2015-2016 President Maithripala Sirisena was already President.
Nonetheless, the Commission concluded there is a growing trend Heads of State to proactively declare their assets and liabilities to foster a practice of transparency and public accountability and suggested to the legislature to address this gap in Sri Lanka’s RTI Law.
In early January 2019, the Presidential Secretariat announced that it will appeal the decision of the Right to Information Commission.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expanded freedom of expression in Sri Lanka and is important for several reasons. First, it reiterated the importance of transparency and accountability and upheld the supremacy of a new Right to Information Act that established a duty to disclose certain information. Second, the judgment upheld the internationally recognized principle that public interest may outweigh complaints of an unwarranted invasion of privacy, particularly when such complaints stem from public officials. Lastly, although the Commission could not find a duty to disclose the President’s financial assets and liabilities, it nonetheless highlighted a growing trend towards transparency and recommended the relevant authorities to address this gap.
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