Before the promulgation of the Constitution of Kenya 2010, the phrase “Serikali ni siri kali” (Government is a big secret) commonly described the futility encountered in attempts to receive information from public institutions.
Article 35 of the Constitution tore that veil of secrecy as it provided for the right to access to information. In 2016, the Access to Information Act was enacted and now the Cabinet Secretary for Information, Communications, Technology, Innovation and Youth Affairs in consultation with the Commission on Administrative Justice have published the Access to Information Regulations, 2021 for public comments.
The objective of these Regulations is to provide for the process of proactive disclosure of information by public entities and private bodies and the procedure for requesting access to information pursuant to the Act. Other purposes include to ensure record keeping by public and private entities, procedures for the reviewing of complaints of denial of access or refusal to correct a record, oversight of compliance on the provisions of the Act and the procedure for reporting by public entities and private bodies.
Key Definitions include
“proactive disclosure” – routine and systematic dissemination of information, in the absence of a request for it.
“reactive disclosure” -making information available in response to a request for it.
“WCAG” means Web Content Accessibility Guidelines.
Information Access Officers
The Regulations require that private and public entities appoint information access officers within 30 days of coming into force of the Regulations. The entities are also supposed to publish on their websites the name, designation and contact information of their Information Access Officers.
The duties of an information access officer shall include to:
- Ensure information is proactively disclosed in accordance with Part III of the Regulations
- Receive and act on requests for access to information, including reducing oral requests in to writing and reviewing all requests to identify the information requested and seeking clarification from the requester if necessary
- Determine whether the requested information is already publicly available, whether the request may be transferred, whether the request may be deferred, and to what extent the request shall be granted.
- Review the information requested to identify if it is subject to any of the limitations set out in section 6 of the Act, and redacting or withholding information that may be limited in accordance with that section;
- Ensure that consent is obtained from any person or third party as required
- Determine any charges to provide print copy, if requested
- Ensuring that timelines for addressing requests are adhered to;
- Informing the requester of the contact details for the Commission and the timeline within which a request for review may be submitted
- Creating and maintaining an internal access to information register to record all requests for information received and the disposition,
- Ensuring that any personal information held by the public entity or private body is accurate and up to date.
- Developing and implementing appropriate policies and procedures as may be necessary for implementation of the Act and the Regulations
- Compile and submit reports to the Commission as required
For information access officers working for public entities, they are supposed to ensure that information required under the Access to Information Act is published on the entity’s website, and a link to that information is displayed on every page of the website, within 30 days of such information being generated, received, revised or updated.
Proactive disclosure obligations of public entities.
The information access officer of a public entity will be expected to ensure that the information access guide required in the Act is regularly reviewed, updated and made accessible provided that such a review shall be on a quarterly basis.
Private bodies on the other end will be expected to publish on their websites and disseminate information held by it that is relevant to the exercise or protection of any right or fundamental freedom.
Requests for information.
A person, group or organization who wishes to access information held by a public entity or private body shall make a request in writing or orally to the information access office. A request for access to information may be made in any other manner, including through an information holder’s official social media account, provided the request contains the information required by Form 1.
No fee shall be charged for the request unless for instances where allowed in law. An information access officer has discretion to waive or reduce any fee for provision of access and, without limiting the generality of the foregoing.
Every information access officer will also be expected to establish and maintain an Access to Information Register to record all steps taken to address requests for information received by the public or private entity.
Public records management.
Public entities are expected to comply ith the current Government ICT Standards on Electronic Records and Data Management issued by the ICT Authority. The records required for proactive disclosure should be stored for a minimum period of ten years.
Effect on Access to Information in Kenya
The draft Regulations are thorough and elaborate. They will play a big role in ensuring that more Kenyans are empowered enough to exercise their Constitutional rights. According to the 2018-2019 annual report by the Commission of Administrative Justice, compliance by entities is improving but still low.
For example in that year, only 4,607 requests that were received by public entities.
We hope that these Regulations will force entities to be more proactive in providing information so as to enable citizens exercise their rights.