The right of persons to access information held by public bodies is ensured and protected by United Nations treaties and agreements as well as national constitutions and right to information laws adopted by more than 120 countries. The Government of Cambodia’s commitment to adopt the Draft Law on Access to Information is a positive step in enabling the right in Cambodia. Once it is adopted and fully implemented, the law should enable Cambodians to more effectively obtain information from public institutions concerning the use of public funds, how decisions that affect their communities are being made, and other matters impacting their lives and wellbeing.
Unfortunately, the Draft Law has many unclear or undefined provisions and definitions that will undermine its effectiveness and that fall short of international standards. These include overbroad exemptions, its non-application to key public bodies including the judiciary and private organisations managing public funds, and unnecessary formalities concerning the system of requests. It also includes a number of provisions unrelated to its primary purpose that threaten free expression. It is crucial that the Government amends the Draft Law prior to adoption in order to ensure compliance with international standards and to fully enable the right of information in Cambodia.
There are numerous provisions within the Draft Law that should be revised. ARTICLE 19 recommends that the Government of Cambodia make the following changes to the draft law before its passage:
- Amend Article 1 to state that the application of the Draft Law should prevail in the case of conflicts with other legislation or regulations restricting access to information.
- Include the presumption of full disclosure in the principles informing the implementation of the Law.
- Add references to international law instruments relevant to access to information such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the UN Convention Against Corruption.
- Revise Article 3 to specify that it applies to all information, no matter the format, in possession, custody or control of public institutions, not just “official documents”.
- Delete the final sentence in Article 3 relating to confidential information.
- Amend Article 3 and 4 to clearly apply to all public bodies and bodies exercising public functions or private bodies operating with public funds.
- Strengthen the public interest test in Article 7 by giving examples of conditions in which the public interest test might weigh particularly strongly.
- Amend Article 11 to remove the requirement that the requester provide their gender, age, nationality and occupation to make a request.
- Remove requirements that requesters use a specified application form and that requests be filed by letter or email. In Article 11, only require that the request reasonably describe—rather than provide a “detailed description of”—the information that the requester wishes to obtain.
- Insert the three-part test as a general principle in Article 20 by specifying that requests will be refused only following application of the harm and public interest tests.
- Revise Article 20(6) to include a substantial harm test for decision-making processes, appointments processes and examinations.
- Delete Article 20.7 as a residual category in the exemption regime in relation to confidential information.
- Amend Article 24 to protect whistleblowers that release any information on wrongdoing, including the commission of criminal offences, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, serious maladministration regarding a public body, or threats to public health and the environment.
- Remove Article 30 on criminal libel establishing imprisonment and/or a fine for whoever makes a lying denunciation to any public institutions or judicial authorities about an offence causing the investigation to become useless. Defamation provisions should not be introduced in the Draft Law as they would have a chilling effect on the right of individuals to make information requests.
- Revise Article 33 to limit the application of criminal penalties to those who provide access to confidential information causing damage to national security, reduce the penalty to make it proportionate, and include a serious harm test.
- Create an independent oversight body to review decisions of administrative bodies, and empower the body to issue binding orders to release information and to provide oversight on the implementation of the law.
- Include in Article 29 a reference to violence against requesters and apply the same penalties as to those who commit an act of violence against officers of public institutions or officers in charge of information.