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Access To Information Act

AN ACT Of Parliament To Give Effect To Article 35 Of The Constitution; To Confer On The Commission On Administrative Justice The Oversight And Enforcement Functions And Powers And For Connected Purposes.

Right to access to information (Article 35 Constitution of Kenya)

(1) Every citizen has the right of access to

(a) information held by the State; and

(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

What does the Act seek to achieve

(a) give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;

 (b) provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles;

(c) provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law;

(d) promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information;

(e) provide for the protection of persons who disclose information of public interest in good faith; and

 (f) provide a framework to facilitate public education on the right to access information under this Act.

What is a public entity?

"public entity" means—

  1. any public office i.e. an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament. (Article 260 of the Constitution).
  2.  any entity performing a function within a commission, office, agency or other body established under the Constitution;

What is personal information?

"personal information" means information about an identifiable individual, including, but not limited to

(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, age, physical, psychological or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;

(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

(c) any identifying number, symbol or other particular assigned to the individual;

(d) the fingerprints, blood type, address, telephone or other contact details of the individual;

(e) a person's opinion or views over another person;

(f) correspondence sent by the individual that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;

(g) any information given in support or in relation to an award or grant proposed to be given to another person;

(h) contact details of an individual.

Access to Information Section 6

  1. A public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.
  2. A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.

Why is the right to Access to Information important? (section 6)

(a) promote accountability of public entities to the public;

(b) ensure that the expenditure of public funds is subject to effective oversight;

(c) promote informed debate on issues of public interest;

(d) keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and

(e) ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

What information can be requested of a public entity (Section 5?)

Information from a public entity concerning;

  1. the particulars of its organization, functions and duties; 
  2. the powers and duties of its officers and employees;
  3. the procedure followed in the decision making process, including channels of supervision and accountability;
  4. salary scales of its officers by grade;
  5. the norms set by it for the discharge of its functions;
  6. guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
  7.  a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person;

What information is a public entity required to publish? (Section 5)

 

  1. Annually cause to be published statements updating the information contained in the previous statement or statements published on any information accessible to public set out in section 5 of the Act;

 

  1.  Publish all relevant facts

 

  1. while formulating important policies or
  2. announcing the decisions which affect the public, and
  3.  before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles;

 

  1. provide to any person the reasons for any decision taken by it in relation to that person;

 

  1. upon signing any contract, publish on its website or through other suitable media the following particulars in respect of the contract entered into-

 

  1. the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;
  2.  the contract sum;
  3. the name of the service provider, contractor or individual to whom the contract has been granted; and
  4. the periods within which the contract shall be completed.

 

          The above information should be available to the public,

(a) for inspection by any person without charge;

(b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be made; and

(c) on the internet, provided that the materials are held by the authority in electronic form.

The public entity should ensure that all information required to be published shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used. (Section 5(2))

Limitation to Access to Information (Section 6)

Right to access to information is not guaranteed where such information shall,

  1. undermine the national security of Kenya namely; ( Section 6)
  1. military strategy, covert operations, doctrine, capability, capacity or deployment;
  2.  foreign government information with implications on national security;
  3.  intelligence        activities,             sources,               capabilities, methods or cryptology;
  4. foreign relations; except  if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.
  5. scientific, technology or economic matters relating to national security; except  if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.
  6. vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;
  7. information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security;
  8. information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;
  9.  cabinet deliberations and records;
  10.  information that should be provided to a State organ, independent office or a constitutional commission when conducting investigations, examinations, audits or reviews in the performance of its functions;
  11. information that is referred to as classified information in the Kenya Defence Forces Act; and (1) any other information whose unauthorized disclosure would prejudice national security.

(b) impede the due process of law;

(c) endanger the safety, health or life of any person;

(d) involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

(e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

(f) cause substantial harm to the ability of the Government to manage the economy of Kenya;

(g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

(h) damage a public entity's position in any actual or contemplated legal proceedings; or

(i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

When is restricted information available in the public domain (Section 6(7))

Unless the contrary is proved by the public entity or private body, information is presumed not to be restricted from public if the information has been held for a period exceeding thirty years.

Who can provide information from a public entity? ( Section 7)

(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act.

(2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

How to apply for Information ( Section 8)

(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested.

(2) Where an applicant is unable to make a written request for access to information because of illiteracy or disability, the information officer shall take the necessary steps to

(a) ensure that the applicant makes a request in manner that meets their needs.

 (b) The information officer shall reduce to writing, in a prescribed form the request made under subsection

 (c) and the information officer shall then furnish the applicant with a copy of the written request.

(3) A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.

Review of decisions to refuse Access to Information ( Section 14)

An applicant may apply in writing to the Commission on Administrative Justice requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information—

(a) a decision refusing to grant access to the information applied for;

(b) a decision granting access to information in edited form;

(c) a decision purporting to grant access, but not actually granting the access in accordance with an application;

 (d) a decision to defer providing the access to information;

 (e) a decision relating to imposition of a fee or the amount of the fee;

(f) a decision relating to the remission of a prescribed application fee;

(g)a decision to grant access to information only to a specified person; or

(h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application.

1. An applicant may apply in writing to the Commission on Administrative Justice requesting a review of any of the above decisions of a public entity or private body in relation to a request for access to information.

2. An application shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant.

3.  The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it is required to publish under this Act.

 4.  The procedure for submitting a request for a review by the Commission shall be the same as the procedure for lodging complaints with the Commission stipulated under section 22 of this Act or as prescribed by the Commission.

Who has oversight on enforcement of Access to Information ( Section 20,21)

The Commission on Administrative Justice (CAJ) is granted the powers of oversight and enforcement of this Act.

In the performance of its functions under this Act, the CAJ shall be guided by the national values and principles of the Constitution.

The CAJ shall designate one of the Commissioners as "Access to Information Commissioner" with specific responsibility of performing the functions assigned to the Commission.

The CAJ shall have all the powers as are necessary for the performance of its functions under this Act.

The decisions of the CAJ shall be binding on the national and county governments.

 

Functions of CAJ are set out in Section 21. They are to:

  1. investigate, on its initiative or upon complaint made by any person or group of persons, violation of the provisions of this Act;
  2. request for and receive reports from public entities with respect to the implementation of this Act and of the Act relating to data protection and to assess and act on those reports with a view to assessing and evaluating the use and disclosure of information and the protection of personal data;
  3. develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data;
  4.  work with public entities to promote the right to access to information and work with other regulatory bodies on promotion and compliance with data protection measures in terms of legislation;
  5. monitor state compliance with international treaty obligations relating to freedom of and right of access to information and protection of personal data;
  6. hear and determine complaints and review decisions arising from violations of the right to access to information;
  7. promote protection of data as provided for under this Act or the Constitution; and
  8. perform such other functions as the CAJ may consider necessary for the promotion of access to information and promotion of data protection.

 

Powers of CAJ  are set out in Section 23. The CAJ can:

(a) issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission;

(b) question any person in respect of any subject matter under investigation before the Commission; and

(c) require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission.

(d)require the discovery and production of any information;

(e) requisition any public records or copy thereof from any public officer; and

(f) take a statement under oath in relation to any investigation it is undertaking.

(g) release of any information withheld unlawfully;

(h) make a recommendation for the payment of compensation; or

(i) any other lawful remedy or redress.

Regulations made by CAJ on access to Information (Section 25)

CAJ may make regulations on,

(a) the manner in which applications under this Act shall be made;

(b) the form in which information requested under this Act shall be supplied;

(c) the making of an application for personal information by representatives of the person to whom the information relates;

(d) the measures to be taken by public entities to facilitate the exercise by persons of their rights under this Act;

(e) the measures to be taken by public entities to ensure that adequate records are created and maintained by the entities;

(f) the procedures for the making of an application by a complainant for the review by the Commission, of a decision made by a public entity relating to access to information;

(g) the procedure to be followed by a public entity in consulting with a third party before giving access to information obtained by it from that party;

(h) the procedures requiring a public entity to ensure that personal information is accurate;

(i) compensation to be sought by an individual who has suffered damage as a result of the holding of inaccurate information about the individual's personal affairs by a public entity;

(j) the records that public entities shall be required to keep; or

(k) such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.

 

 

Handling of Complaints by CAJ ( Section 22)

 

  1. A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose.
  2.  A complaint lodged shall be in such form and contain such particulars as the Commission may, from time to time, prescribe.
  3. Upon receipt of a complaint the CAJ may,

 

(a) call for information or a report regarding such complaint from the public entity or any other body within such reasonable time as may be specified by the CAJ and —

(i) if the information or report called for is not received within the time stipulated by the CAJ, the CAJ may proceed to inquire into the complaint without such information or report; and

(ii) if on receipt of the information or report the CAJ is satisfied either that no further action is required or that the required action has been initiated by the public entity, the CAJ shall, in writing, inform the complainant accordingly and take no further action; or

 

  1. initiate such inquiry as it considers necessary, having regard to the nature of the complaint.
  2.  An order of the Commission after a complaint  may be filed in the High Court by any party thereto according to regulations made in consultation with the Chief Justice prescribe and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order.

 

  1. If no appeal is filed, the party in favour of whom the order is made by the CAJ may apply ex-parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner and effect as an order of the High Court.  
  2. Public entities and relevant private bodies shall provide to the CAJ such reports as required by the Act.
  3. The CAJ shall, in consultation with the public, develop and publicize guidelines detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies.
  4. The CAJ may request any further information from the public entity or the relevant private body to facilitate and enhance monitoring at any time and may issue an order compelling the provision of such further information.

Section 23(3) provides for an Appeal Process from the decision of the CAJ.

A person who is not satisfied with an order made by the CAJ on a complaint, may appeal to the High Court within twenty-one days from the date the order was made.

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