Comments on the Yemeni Access to Information Law after amendments.

by Maha Al Aswad

Comparison between the Yemeni Access to Information Law, issued in July 2012 and the first draft of the law referred to the President from the House Of Representatives in April 2012.

Yemen issued a Freedom of Information Law on July 1st,2012, becoming the second Arab country after Jordan to issue a freedom of information legislation (The 3rd if we considered the presidential decree in Tunisia on Access to Information to be one).
The law was discussed in the House of Representatives and was approved on April 24, 2012. According to the Yemeni constitution, it must be ratified by the President of the Republic to enter into force and to be published in the Official Gazette. However, Yemeni President, Abd Rabbo Mansour Hadi, refused to ratify and sent it back to the House of Representatives on June 10, 2012, with a note of his objections and the proposed amendments.
I did not have access to the note made by the President, but several Yemeni news portals brought that the president objections were about Articles 13 and 14 which provide protection to any employee who gives information about the irregularities or violations of the law, arguing that they contradict with other laws already existing such as the Law to combat corruption. He also called for the deletion of Articles 4 and 17, which do yield the right of foreigners to get information just like any Yemeni citizen.
The proposed amendments and objections were discussed in the House of Representatives then the law was approved on June 16, 2012, and finally was ratified by the president on July 1, 2012.
Below is a quick comparison between the draft law approved by the House of Representatives in April 2012, and the current law. The parts which were deleted are  stricken through, the parts that were added are in red, the parts that stayed unchanged are painted in bold.
(1)

The first chapter on definitions and objectives: article (2), which is about definitions,

in defining the information, the part that lists examples for the different forms of information was deleted as follows:
Information: Facts that are recognized in the conscience and which are present as moral  and materialistic values in the form of numbers and letters; also, as drawings, images and sounds that which are being collected, processed and saved by electronic methods and sheets, for example but not limited to data, and the contents in any of the records and written documents or saved electronically, or drawings or maps or literature; or also, tables, images, or movies or microfilms or microfiche or audio recordings or videos or graphics or correspondence or tapes and computer disks and other recordings, memoranda, or records and documents reviewed by agency or submitted to it, and any other information reserved online, by all means known now or invented later in the future.

While the deleted part shows only examples of different forms of information and it may have been deleted for curtailment, but leaving it would have been useful in all cases.

(2)

The definition of Personal Data was limited in the final version of the Act as follows:
“Personal data: Information about an individual relating to a particular ancestry of this individual, race, and marital status, health, financial status, or other contact information; on the condition that that particular individual has not been dead for more than thirty years since the subscriber had submitted the application.” On the condition that it is not allowed to give information related to individuals without their direct consent or consent of any of their first, second or third degree relatives in case they are dead.

Race, health, financial situation and contact information were omitted. Consent of the person or his relatives in case the person is dead was added in the July version.

In spite of that, article 25 stipulates when one can’t get requested personal data. That means that matters of health and finance are not considered personal data, and thus may be found in any time because they do not require the consent of the individual or his relatives in the case of his death. At least this is how I  interpreted of the article after amendments.
In other words here in this particular law, limiting the definition of personal data in the law serves the freedom of access to information as long as the only mention of personal data in the law later is to clarify when an employee is entitled to refuse a request for information.
(3)

Definition of the Executive rules, in April’s draft there was a broad definition which was: It is the executive list of the premises upon which the law was established and by which every single phrase or terminology related to the law is being explained and clarified without disturbing any pattern of each of its articles” .

While in the final version of the law definition has been deleted entirely, with a definition of “Rules”: as the executive rules of the law. Deletion, especially the last part “without disturbing any pattern of its articles,” raises many questions. What was the harm in leaving? Is there an intention to leave the authority to interpret the law absolutely in the hands of the Information Commissioner (appointed by the President of the Republic) and the President himself? The executive rules have not yet been issued, which is supposed to be within 6 months.
(4)

In Chapter II on Freedom of Access to Information: Article (4) states: “Access to information is one of the basic rights of a citizen and of foreigners and citizens to exercise this right within the law, and foreigners can have access to information on the condition of having the same treatment”.
President objection had been taken into account regarding the equality between citizens and foreigners. There is no a serious defect as compared to other laws of freedom of information, but it is better to be available for all. I do not usually understand the dogmatic national character of the laws governing human rights. They are called human rights, not rights of citizens.
(5)

In Article (13): “It is not permitted to inflict any punishment on any employee who has given information to an authorized investigation entity about violations or infringements of this law or who has assisted in any investigation about any violation or infringement of this law. Also,  he may not be punished in his job by any legal proceedings or otherwise he may not be subject to disciplinary accountability  by the administration to which he is affiliated.
The final form of this article is much worse than the April version. The article in its current form determines that only employees who submit information to the authorized investigation entity shouldn’t be subject to disciplinary accountability in their job. And even in that case, they can be prosecuted in any other form of litigation. While in the earlier draft, the article was clear and simple, it guaranteed that employees are not be punished in their job or by any other legal action or otherwise.

Also, in all cases the article doesn’t not constitute in its current form protection of employees in the case of releasing information about corruption, those who can be called whistle blowers. This article is one of the articles which the President mentioned in his memorandum to the House of Representatives as to be incompatible with the current Yemeni law to combat corruption.
I found that in the anti-corruption law there is only one article relevant to freedom of information, which is article (27): “The administration [Anti-Corruption Administration] is to ensure that the safety of witnesses, experts and whistle-blowers for the crimes of corruption, and provide legal, functional and personal protection. The executive law shall specify the procedures for their protection and special measures to do so.”

The article in its current form didn’t conflict with article 13 of the access to information act (April version). I started looking in the executive law of the anti-corruption law, but I also did not find any conflict at all. Any relevant material in Chapter VI on the protection of sources and witnesses and experts, are articles 140 141 142. Also protection on the  international level in article 160, second provision, points 1-2 .
I think that the conflict which he meant is that the Anti-Corruption Commission is the only authority to which employees are allowed to give information on the grounds of corruption ( The authority referred to in Article 13 of the Access to Information Act after the amendment??)

It also means that whistle blowers who submit complaints to the Anti-Corruption Commission are protected, but there may not be the same legal protection to those who submit the information directly to the public and the media, because according to Article 38 of the Anti-Corruption Law: “The correspondence, information and communications related to crimes of corruption and what is happening in the will of the examination or investigation are considered secrets that must be preserved and must not  be disclosed by any of those who work on the implementation of this law”.

In my opinion this does not contradict with the law of freedom of information, particularly in Article 24, paragraph (d), which prohibits disclosure of information that may hinder the course of justice or assist in the capture of perpetrators. On the other hand, there is no legal protection for whistleblowers through media for example.
(6)

As for Article 17 relating to the possibility of foreign entities to request information was abolished completely, which means that international human rights organizations for example and other similar organizations can’t apply for the information. In article 4 after amendments, “foreigners” may request information in case there was “same treatment” which is not totally clear.
(7)

Article 17 has been replaced by Article 18 and thus the article numbering was changed to the end of the law. The law still came in 66 articles like April’s draft despite deleting an article, due to adding Article 66 which provides for the deployment of law in the Official Gazette.
(8)

In Article (24) – was article (25) in April draft- Paragraph d, point 4 was deleted. It is a good change because it deleted “Information, if disclosed, may cause significant harm to: Assessment or collection of any tax or legal fees. “ as a kind of information that shouldn’t be disclosed, which provides some sort of flexibility In accessing financial records.
(9)

Article (25) (was Article 26 in April draft) was modified to the worst, to read as follows:
Subject to the provisions of Articles (4, 19.20 / b, 23) of the Act, the officer shall reject any request for access to information if that information contains:

 

  1. A.    Information which, if disclosed, may endanger the life of an individual or put his physical safety at risk.

Personal data which, if disclosed, may be considered as an illogical violation to the privacy of the individual, unless the personal data are connected to the duty or function or public office held by that individual and a general social damage is caused if not published.

With this amendment the Yemeni access to information law lacks an article/provision which puts public interest first on the matters of accessing personal data, which is a must in any strong access to information law.