RTI Court case: MFWA disappointed at Ruling

The Media Foundation for West Africa (MFWA) has received with disappointment the ruling on June 17, 2021 by the Human Rights Division of the Accra High Court on MFWA’s request to Ghana’s broadcasting frequency regulator, the National Communications Authority (NCA), for information on the closure of a number of broadcast stations.

Background
In exercising our right under the Right to Information (RTI) Law and Article 21 (f) of the 1992 Constitution, the MFWA sued the regulator late last year after it demanded GHC2,000 in order to grant the request for information on the radio stations it shut down.

The NCA had indicated that the FM stations it shut down, including notable ones sympathetic to the main opposition National Democratic Party (NDC), had not renewed their authorisation license. MFWA noticed from the NCA’s “List of Authorised VHF-FM Radio Stations in Ghana as at Second Quarter 2020” that some radio stations whose last authorisation renewal suggested that they had defaulted were still operating while others were shut down. This information was on the website of the NCA as required by law.

When the MFWA made calls to the NCA to find out, the NCA official promised to get back to the organisation with a response. That response did not come. The NCA, however, pulled down the information on its website and deleted two columns—date of first authorisation and date of last authorisation renewal—before uploading the information again on its website.

We asked for the reason for the deletion of the two columns from the report it had previously published.

Ruling
The Court granted our requests 1, 2 and 4 relating to the list of all radio stations that had been shut down by the NCA, a list of all authorised TV stations, a list of all authorised VHF-FM radio stations, and the respective dates of first authorisation and last authorisation renewal. The presiding judge, Justice Gifty Agyei Addo, however, declined the request for the regulator to explain certain changes it had made to a report on its website.

The MFWA is disappointed at the ruling for a number of reasons:

1. The Court asked that the MFWA pays a fee of GHC1,500 to the NCA in order to have our request granted. The bone of contention was the GHC2000 the NCA demanded in order to furnish the MFWA with the information we had requested under the RTI law. We find it curious that the judge ordered us to pay GHC1,500 for the information, despite stating that the NCA had misconceived the provisions on fees and charges under the Electronic Communications Act (Act 775). We find the amount to be exorbitant, given that section 23(3)(d) of the RTI Act provides that “Where the Information Officer decides to give access; the notice shall state the prescribed fee for the REPRODUCTION of information.” (Emphasis supplied).

2. The NCA already has the information we requested—the information based on which it proceeded to shut down radio stations—and does not have to conduct any kind of research to put it together as the authority is claiming. Even if the NCA had to conduct a fresh search in order to compile the information, the law provides for payment for the reproduction of the information such as printing, photocopying etc. and not the time used by the public official to put the information together.

3. The fee of GHC2,000 demanded by the NCA was a ploy to dissuade us from pursuing the information we were seeking. The MFWA did not go to court because it could not pay. While we can pay the GHC1,500 fees decided by the court, it is important to underline the fact that the right to access public information under the RTI law accrues to all Ghanaians including the lowest income earners. This precedent, can therefore, discourage or disenable a certain class of Ghanaians from exercising this.

4. The court also dismissed our request to the NCA to explain why it deleted two columns from its report before reposting on its website saying we were asking for an opinion, and not information. We find this unfortunate because request for information is not limited to data. The information could be an explanation for decisions taken by the public institutions on behalf of the people.

5. Another issue we find worrying about the judgment is the Court’s decision that the information we requested is not of public interest. The radio stations broadcast to the general public and their closure was of national interest. The Minister responded to the issue in parliament and it featured prominently during the sector minister’s vetting. It is therefore difficult to understand how the request could be said to be for the MFWA’s personal interest.

6. We wish to state that we went to court as a matter of principle. We sought to prevent a precedent that can encourage public institutions to dissuade RTI requests by demanding exorbitant fees from applicants, some of whom could be ordinary or even vulnerable citizens.

We will wait and study the judgement from the court together with our legal team to decide the next line of action and would inform the public accordingly.