The Freedom of Information Act was gazetted in July 2020 to repeal the Access to Information and Protection of Privacy Act (AIPPA) and to also give effect to the right to access to information as provided for by the Constitution.
In terms of Section 40 of the Act, the Zimbabwe Media Commission (ZMC), after consultation with the Minister of Information, Publicity and Broadcasting Services, has a duty to make regulations that provide for all matters which are required or permitted to be prescribed, or, are necessary or convenient to be prescribed in order to carry out or give effect to the Act.
In September 2021, the regulations were finally enacted under Statutory Instrument 229 of 2021 as Freedom of Information (General) Regulations 2021.
These regulations obligate entities to publish information on their institutions within six (6) months from the date when the regulations were enacted, and for those that were or will be established post the enactment of the regulations, within six (6) months from the date of establishment of the entity.
Information to be published includes their functions, departments and agencies, operating hours and business addresses, among others. A description on the nature or subject of the information that the entity holds should also be included.
Entities also have a duty to appoint information officers who will handle information requests and such information officers shall have several functions which include keeping a register of and tracking all applications.
The First Schedule in the Regulations has the requisite form which shall be used to request information, which qualifies as the prescribed manner provided for in Section 7 of the Freedom of Information Act.
Once an information request has been filed the procedure is as follows:
1. The entity will pass on the regulations to its information officer.
2. The information officer shall send an acknowledgement of receipt of the request.
3. Make a determination on whether or not the information request is granted.
4. Provide the appropriate response to the information request within 21 days or 48 hours if the information requested relates to the right to life or liberty.
The acknowledgement form template is in the regulations in the Second Schedule.
An information request can also be transferred to another entity if the information officer scrutinises the request to access information and sees it fit that the request should be handled by another entity. In the Freedom of Information Act, this aspect of transfer is only mentioned with regards to information relating to third parties.
The Regulations require that the transfer should be done immediately and correspondence should also be dispatched to the applicant that the request to access information has been transferred to another entity.
However, the Act highlights that such transfer should be made within seven (7) days.
The Regulations should have also placed a specific timeline (for example, within 24 to 48 hours) for the transfer and correspondence or made reference to the timeline in the enabling Act, instead of leaving the regulations vague by simply saying this should be done immediately.
The notice to the third party should include the following:
· state that a request has been made by an applicant for access to a record containing personal information about the third party
· describe the contents of the request and record concerned
· describe the protection granted in terms of the Act with respect to the information concerned
· state that, within seven (7) days from the date of the notice, the third party may, in writing, consent to the disclosure or may make written representations to the information officer explaining why the information should not be disclosed
· state that a decision will be made within fourteen (14) calendar days from the expiry of the seven (7) days whether or not to give the applicant access to the record or from the date a response is received from the third party, if earlier.
· Notification of decision to grant access and right of appeal
It should be noted that in terms of the Act, a person can receive information in different forms which can include copies, a right to access or inspect the records or a transcription. In circumstances where the applicant will have access to the records or an opportunity to inspect, such access shall be given within the working hours of the entity concerned.
The third schedule of the regulations provides that no fees shall be payable for purposes of accessing information, but the fees shall be charged for reproduction, photocopying, transcription and translating of copies as charged by the public entity.
In that regard, the regulations do not specify the fee for these aspects and instead leaves it to the discretion of the entities concerned.
The Regulations also provide for purposes of filing an appeal with the Zimbabwe Media Commission, which fee shall be ZWL 5,000,00.
It is MISA Zimbabwe’s well-considered view that this amount is too high for ordinary citizens and communities who will want to access information. Such fee will be a deterrent to citizens whose information requests would have not been granted or would have not been responded to within the requisite time.
Pertaining to the filing of an appeal, the Regulations provide for the establishment of the Public Information Appeals Committee, which shall have at least three and not more than five members, one of whom must be a Commissioner. The Commissioner shall be the Chairperson of the Committee, and where there are two Commissioners, one of them shall be responsible for chairing the Appeals Committee.
The Regulations specify that the other members of the committee shall be drawn from the Secretariat or from a list of adjudicators approved by the Commission for their experience and competence in adjudicating disputes.
No reference is made to the procedures and requirements regarding the nomination and appointment of the members of the Committee or their terms of office as part of the Public Information Appeals Committee.
Of note, is the fact that the regulations, provide discretion to the Zimbabwe Media Commission to establish or not to establish the afore-mentioned Committee, hence, in the absence of such a Committee, the Commission itself, will be responsible for hearing appeals.
Further, the Secretary of the Commission also has specific roles to play with regards to the handling of appeals by the Commission, which include the following:
· record details of the appeal in an appeals register established for that purpose and assign an individual case number to the record
· request the information officer whose decision is appealed against to submit to the Commission, within ten days, the application for access to information together with the officer’s reasons for refusing access
· notify any third parties of the appeal, if the appeal affects any third party, and request them to make written representations within seven days as to why the request for access should not be granted
· prepare a record of the matter and transmit the record to the Commission or the Appeals Committee established by the Commission.
MISA Zimbabwe position
MISA Zimbabwe welcomes the enactment of the Regulations which provide clarity on the duties of entities and their information officers for purposes of efficiently providing access to information.
Further, the Regulations provide more clarity on the role of the ZMC although some critical aspects were not provided for as afore-mentioned.
Further, the Regulations highlight that the Appeals hearing shall be conducted in English and where any one of the parties or witnesses would prefer another language, an interpreter shall be provided. This is critical to ensure inclusivity and to cater for all 16 official languages as provided for in the Constitution.
The Regulations also give a six-month timeline for entities to provide information on their entities and functions, among others. It will therefore be critical for the entities to use all available mediums to inform the public accordingly.
It is MISA Zimbabwe’s well-considered view, that the set fees for the filing of appeals, can be a deterrent to ordinary citizens who would not have received the information within the requisite time, or who might not be satisfied with the responses of information officers.
Section 14 of the Regulations speak on the issue of exemptions to fees, which classes of exemptions shall be specified by the Minister through the Gazette. It would have been more expedient and convenient to specify the categories of people that can be exempted within these Regulations instead of creating room for further regulations or clarification on this aspect.
It is hoped that the ZMC will adhere to the principles of natural justice as indicated in the Regulations and ensure that matters relating to access to information are brought to finality.