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Wednesday, November 30, 2022

Sri Lanka RTI commission orders to release info on PTA detainees under Police custody

The Appellant,  Tharindu Jayawardhene by information requests dated 20.11.2021 requested for the following items of information.

1. “ Among the persons arrested under the Prevention of Terrorism Act who are in custody on detention orders,
1.1.What is the total number of people?
1.2.What is the number of people under the age groups below 18 years old / between 18-30 / between 30-60 / above 60?
1.3. What is the number of female and male persons separately?
1.4.According to the residence of people, how many people reside under each district?
1.5.What is the number of expectant mothers?
1.6.How many people are receiving psychiatric treatment?
1.7.How many people are receiving medical treatment?
1.8.What is the number of individuals separately who have been in custody for Less than a month /Between 1-3 months /Between 4-6 months /Between 7-9 months /Between 10-12 months /Between 13-15 months /Between 16-18 months /more than 18 months?
1.9.How many detention centers are there where people are detained?
What is the number of the above types of detainees in each detention centers?

2. Arrested under the Prevention of Terrorism Act and who have been released without bail (without granted bail) and without serving indictment since January 01, 2019;
2.1.What is the total number of people?
2.2.What is the number of people under the age groups, below 18 / between 18-30/ between30-60 / above 60?
2.3.What is the number of female and male persons separately?
2.4.According to the residence of people, how many people reside under each district?
2.5.What is the number of expectant mothers?
2.6.How many of the individuals received mental health care (mental health treatment) while in custody?
2.7.How many of the individuals received physical health care (Medical treatment) while in custody?
2.8.Number of persons, separately by time intervals between date of arrest and date of released? (Less than 1 year / Between 1 to 2 years / Between 3 to 5 years /Between 5 to 10 years / Between 10 to 15 years / Above 15 years)”

(Period applicable to requested information: January 01, 2019 to November 20,
2021.)

On 27.11.2021, the Information Officer responded with regard to the information request as follows;
“….Information” is defined in Section 43 of the Information Act. Please be informed
that as the information you have requested does not comply with that definition, it
is unable to provide that information.”

Dissatisfied with the response of the Information Officer the Appellant lodged an appeal
with the Designated Officer on 13.12.2021. The Designated Officer responded on
09.01.2022 stating the following;

“…I hereby inform that as per the provisions of sub-section 5 of the Right to Information Act No. 12 of 2016, it has been rejected for the reason stated below.

i. Section 5 (1) (b) (i) of the Right to Information Act No. 12 of 2016.”
Dissatisfied with the response of the Designated Officer the Appellant preferred an appeal
to the Commission on08.03.2022.

Consideration:
We find that we cannot agree with the decision of the Information Officer of the Public
Authority as reflected by letter dated 27.11.2021 in response to the aforementioned
information request, to the effect that the requested information does not fall within the
interpretation of what constitutes ‘information’ in Section 43 of Act, No. 12 of 2016.

The Appellant had explicitly requested specific items of information in the aforementioned
request relating to detainees under the Prevention of Terrorism Act (PTA). The Information
Officer has not been able to establish his position that the requested information does not
fall within the purview of Section 43, other than a bare statement to that effect and further,
has not been able to correct that lacunae during the appeal hearing.

Further, the response of the Designated Officer (the Inspector General of Police) with
regard to the appeal lodged by the Appellant against the refusal of the Information Officer
to release the information, is clearly contradictory to the response of the Information
Officer as aforesaid. The Designated Officer has pleaded a different ground (vide; S.5 (1) (b) (i) of Act No. 12 of 2016) to refuse the information.

The function of the Designated Officer should be to confirm or not confirm the decision
reached by the Information Officer. This, he has failed to do in violation of the mandatory
duties cast upon him by Act, No 12 of 2016.

In any event, we find that the Designated Officer of the Public Authority has failed to
discharge the legal burden of proof to establish grounds under Section 5(1) of Act, No 2 of
2016 to repudiate the requested information. He must clearly demarcate which of the
information requested by the Appellant is encompassed within the ambit of Section 5 (1) (b) (i) of the Act.

The above requested information relates to, inter alia, the number of persons detained on
remand orders among those arrested under the PTA, their particulars, their mental state/s
and the number of individuals receiving medical treatment.

Section 5 (1) (b) (i) states that information may not be released where the release thereof
would “undermine the defence of the State or its territorial integrity or national security.”
We are unable to comprehend as to how the above requested statistical information,
including the number of arrestees, their particulars, the number of expectant mothers, the
number of individuals receiving treatment and related information, would cause undermine
the defence of the State, national security or territorial integrity.

That consideration has not been addressed by the Designated Officer of the Public
Authority; at the very least, that has not been not taken into account by him in arriving at
his decision which is impugned before us. Accordingly, the said decision stands flawed in
terms of the imperative provisions of Act No 12 of 2016 which the Designated Officer is
bound to take into account.

Furthermore, part 2 of the Appellant’s information request relates to the number of persons
who have been detained under the Prevention of Terrorism Act; and have been released
without bail without filing charges since 01.01.2019, under the afore mentioned categories.
If persons indicted under the PTA are released, it is evident that such persons have not
committed any offense; consequently, the release of information thereto cannot in any way
endanger the defence of the State, national security or territorial integrity.

On the contrary, we are of the view that, the disclosure of such information would, in fact,
be in the public interest.

Throughout, the Public Authority has merely stated that refusal to release the information
‘is the position of the Public Authority.’ No other submissions or justification of this stand
based on cogent and credible grounds were made during the hearing of this appeal.
In the foregoing, we overrule the decision of the Designated Officer with respect to the
appeal lodged by the Appellant regarding the above information request. We decide that the Public Authority should release all the information contained in the above information
request dated 20.11.2021 to the Appellant before 28.10.2022, with copies to the
Commission.

The Commission further decides that the failure to release the said information on or before
the said date would lead to prosecution before the relevant Magistrate’s Court under
Section 39 of the said Act.

The Director General is directed to convey the Order to the Appellant, the Information
Officer and the Public Authority.

Appeal concluded.

Decided on: 06.10.2022

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