The Right to Information (RTI) Commission has annulled the decision by the Minerals Commission to demand the cedi equivalent of $1,000 as fees for information The Fourth Estate requested.
The RTI Commission reversed the decision in a landmark decision following an application for review filed by The Fourth Estate, a journalism project of the Media Foundation for West Africa (MFWA).
The Fourth Estate had indicated in its request letter to the Minerals Commission, Ghana’s mining regulator, that it preferred the information in a PDF format. It also provided an email address to the Minerals Commission through which the information could be sent.
The Minerals Commission charged $1000 (¢6000) for the information despite the fact that the RTI law says fees charged for RTI requests should cover only the cost of reproducing the information and the cost of the information or the time spent retrieving it.
The Minerals Commission defend the decision and cited its governing laws to back the fee charged.
The Right to Information Commission has, however, ordered the mining regulator to charge only ¢1.90, if the information is to be sent via email. It also instructed the Minerals Commission to charge ¢1.80 per page if it’s to print the information for The Fourth Estate.
The Fourth Estate had requested information on companies licensed to undertake mining in Ghana between January 2013 and May 2021, and companies whose licences were revoked or suspended within the same period.
But in what RTI advocates described as “outrageous” and a financial roadblock to access to information, the Mineral Commission demanded almost ¢6000 for the information.
This generated a lot of uproars.
In its June 19, 2021 rebuttal after The Fourth Estate published the story about the $1000 charge, the commission released a press statement and defended its decision.
“Kindly be informed that in accordance with section 75 of Act 989, Section 103 of the Minerals and Mining Act, 2006 (Act 703), as well as Regulation 4 of the Minerals and Mining (Licensing) Regulations,2012 (LI 2176), the application fee payable is the Ghana Cedi equivalent of $500 per request.
“Thus, the applicable fee payable for the above information is the Ghana Cedi equivalent of $1000.”, the statement signed by its Acting Chief Executive Officer, Martin Kwaku Ayisi said.
Acting in accordance with the provisions of the RTI law, however, The Fourth Estate appealed to the RTI Commission to intervene.
In its 13-page decision conveyed to The Fourth Estate on July 19, 2021, the Right to Information Commission said the Mineral’s Commission’s law was “wrongfully applied to the Applicant [ Evans Aziamor-Mensah of The Fourth Estate] when he requested information from the minerals rights register.”
It also declared the mining regulator’s fee illegal.
“The Respondent [Minerals Commission] cannot charge a fee of Ghana Cedi equivalent of $1,000 on the Applicant for a request for statistical data or information when such a fee or charge has no legal basis”
Applying the rules of natural justice, the RTI Commission had written to the Minerals Commission asking it to justify its $1,000 demand. The Minerals Commission in its response questioned the locus of the RTI Commission to intervene in the matter.
“The Minerals Commission and, indeed, the RTI Commission do not have the legal wherewithal to review, vary or waive the fees and charges approved by Parliament for services the Commission renders to the general public as has been erroneously pressed upon the RTI Commission by the applicant,” the Minerals Commission’s response, which the RTI Commission said delayed more than 14 days partly, read.
But having been clothed with the powers to determine issues relating to state institutions releasing information, the RTI Commission stamped its feet, stating that section 43(2) (c) of Act 989 gave it the power “make any determination as the Commission considers just and equitable including issuing recommendations or penalties in matters before the Commission”.
It further schooled the Minerals Commission on the RTI legislation, saying section 44 (c) of Act 989 “mandated it to take the appropriate action necessary to help it resolve a complaint” before it.
In a ruling that RTI advocates consider a major victory, the RTI Commission ordered the Minerals Commission on what fees to charge for the information.
“The Commission directs the Chief Executive Officer of the Minerals Commission, Martin K. Ayisi, to ensure the application of a charge or fee of either ¢1.80 pesewas multiplied by the number of pages of information to be printed or ¢1.90 if the information in its entirety is to be emailed to the Applicant in PDF format,” the RTI Commission ruled.
But this is not without a timeline, knowing that the Minerals Commission failed to respond in time when the RTI Commission wrote to it.
“The information must be furnished the Applicant as requested within 14 days from the date of this determination”, they warned.
This determination is a sharp departure from the decision by an Accra High Court in June between the Media Foundation for West Africa and the National Communications Authority. The court asked MFWA to pay GHc 1,500 for an information request, a decision the MFWA described as “disappointing”.
Proposed fees for RTI requests being considered.
To cure the abuse of discretionary power in charging exorbitant fees, the RTI Commission said in June 2021 that it had submitted for consideration proposed fees and charges to be applied for requests made by the public for information from public institutions and relevant private bodies.
This proposal, the Commission said, “is currently going through the requisite administrative considerations and assessment before presentation to Parliament for approval in accordance with Act 983”.
Reiterating the legal arguments made by Legal Practitioner Samson Lardy Anyenini, the RTI Commission said fees charged for RTI requests must be reasonable and must cater for the cost of re-production and not an additional source of avenue for generating money for an institution.
RTI Law as a tool for fighting corruption
The RTI Commission said the most potent medicine for corruption in the country’s current circumstance was the RTI law.
“If there is any potent tool for ensuring good governance, strong democracy and fight against corruption, that tool should be the right to access to information held by public institutions or relevant private bodies (which are private bodies funded with state funds or resources and performing public functions),” it said.
Reacting to the decision of the RTI Commission, a private legal practitioner and strong advocate of the right to information, Samson Lardy Anyenini, said it was “progressive” and signified fidelity to the law.
“I wish they had held the request to be about information in the public interest and therefore not liable to any fee. I know the issue of public interest can be controversial. But this is such fidelity to Act 989, especially the critical sections 75 and 85.
“It is very progressive and set to get information holders to act in compliance with the law by requiring fees only to cover the true cost of reproduction of information requested by the public,” Mr Anyenini said.
“I have faith this decision will also be a good guide to judges who are not that familiar with the law and matters of RTI generally. The Commission has, by its first decision, put itself in the right and hallowed place of the history of the development of the RTI regime in Ghana,” he added.