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The Access to Information Act No. 31 of 2016 – Implications for Private Firms

Stephen Mallowah (smallowah@tripleoklaw.com) and Juliet Maina (jmaina@tripleoklaw.com)

Article 35 of the Constitution of Kenya provides for the right of Access to Information. It states as follows: –
Every citizen has the right of access to (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. It also stipulates that (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person; and (3) The State shall publish and publicise any important information affecting the nation.
Pursuant to this constitutional provision Parliament has enacted The Access to Information Act that obliges all public entities to disclose information upon public request. It also enables the public to put all public entities to task to explain their actions, policies or decisions upon request. To allow the public to participate in policy formulation, the Act requires that government makes public all the relevant facts while formulating important policies that may affect its citizens. Public entity is defined in the Act as any public office, as defined in Article 260 of the Constitution; or any entity performing a function within a commission, office, agency or other body established under the Constitution.
When the Bill was being discussed in Parliament, the objects put forward by its proponents were “… to give effect to facilitate access to information held by Government Ministries and other public authorities. The Bill recognizes access to information as a right bestowed on the Kenyan people, and seeks to promote proactive publication, dissemination and access to information by the Kenyan public in the furtherance of this right. It also spells out the mechanisms for ensuring public access to information, as well as the factors that may hinder the right to this access. The Bill is borne of the realization that access to information held by the Government and public institutions is crucial for the promotion of democracy and good governance.”
This enactment is a welcome step because traditionally access to information in Kenya has been subject to a legal regime geared towards prohibition, rather than dissemination and sharing of information. Access to information is recognized internationally as fundamental in a society that is governed by the rule of law, as it provides individuals with the knowledge required to participate effectively in the democratic process.
While it is noteworthy that public officials can now be compelled to disclose information, and the public can enforce their constitutional right to information, what should be of concern to private entities however, is the scope and reach of the Act. The Act, specifically at Section 2 sets out the following definitions of a private body: –
“private body” means any private entity or non-state actor that— (a) receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources); or (b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right.
This definition is fairly wide and so it could conceivably cover various private entities – for example under the first limb of the definition, providing public services could cover telecommunications, transport, health, mining, petroleum exploration, power generation etc. Part b) of the definition would presumably cover private entities not caught under part a), but who possess information of significant public interest.
A further issue for consideration is the allocation of responsibility for the disclosure of information. The Chief Executive Officer of the public entity is the designated to be the Information Access Officer for purposes of the Act. Although Section 7 refers to public entities, one can presume that this would extend to private entities as well. This function can however be delegated to an officer of the entity.
The Act also contemplates at Section 25 that the relevant Cabinet Secretary, in consultation with the Commission on Administrative Justice, shall issue regulations for the better carrying into effect the provisions of the Act. So far, these regulations are yet to be issued. However, it would be foolhardy to assume that the Act is not enforceable merely because the regulations to better operationalize it are not in force.
The Access to Information Act No. 31 of 2016 – Implications for Private Firms 3
The financial penalties imposed under the Act are fairly innocuous ranging from fifty to five hundred thousand shillings but you should keep in mind that there is the option of custodial sentences. However, from a nuisance perspective, actions under this Act could generate a lot of negative PR for the concerned public or private entity. Further, there is also a possibility of being barred from doing business with the government following a successful conviction.
Another problem that might be faced by private entities doing business with the public sector is that the public entities could be compelled to disclose confidential information provided by the private sector. There may be a need to review standard confidentiality clauses in contracts, the level of disclosure of information, and draft to include requirements for notification when a request for commercially sensitive information is made to a public entity.
It is therefore important that private entities who may be impacted by this legislation obtain advice on whether, this law applies to them, and develop the policies, structures and processes for responding to requests for information contemplated in the Act.

If you require further information on the Access to Information Act, please get in touch with Stephen Mallowah, Juliet Maina or any member of our Corporate and Commercial/ Telecommunications, Media & Technology Team.

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