Enhance Right to Information (KE0017)

Establish the http://www.opendata.gov.mk website. Depending on the model that will be the most appropriate, open data will be put on the website during its development through a direct link to the institution that provides that information, or web catalog will b

µ8. Right to information and records management

Commitment Text:

Status quo or problem/issue to be addressed: The backbone of a transparent and accountable government is strong records management. Modernization of records management improves performance and promotes openness and accountability by better documenting the actions and decisions of the government. The transition to digital information creates new opportunities for records management, but much of government still relies on outdated systems and policies.

Main Objective: Improve the quality and storage of records created across the public service with a view of improving service delivery to the citizens.

Brief Description of Commitment: Improve management of public records by developing and implementing comprehensive policies, procedures and systems that will ensure creation of complete, accessible and authentic records.

Milestones:

8.1. Pass Access to Information Legislation

8.2. Review of Public Archives and Documentation Service Act & Record Disposal Act

8.3. Develop and implement comprehensive records management policies, procedures and guidelines

8.4. Develop minimum technical requirements for implementation of Electronic Document & Records Management System (EDRMS)

8.5. Strengthen the capacity of records management professionals and public officials

8.6. Establish a programme of public education for citizens and public officials about the right to protect, preserve and access information

8.7. Establish a central digital repository for government records and data and all information of public interest

Responsible institution: Ministry of Sports, Culture and the Arts

Supporting institutions: Ministry of ICT; ICT Authority; Commission for Administrative Justice; all public entities; ICJ – Kenya; Article 19 Eastern Africa; Transparency International – Kenya; and Freedom of Information Network

Start date: 1 July 2016

End date: 30 June 2018

Editorial note: This commitment is clearly relevant to OGP values as written, has transformative potential impact, and is substantially or completely implemented and therefore qualifies as a starred commitment.

Context and Objectives

The commitment seeks to modernise record management to improve performance and promote openness and accountability by better documenting the actions and decisions of the government. While much of government still relies on outdated systems and policies, the transition to digitally stored information creates new opportunities for record management. The objective of the commitment is to improve the quality and storage of government records to ensure that access to information and Freedom of Information (FOI) requests can be realised. Kenya is required comply with information requests and disclosure under the terms of several treaties and agreements it has ratified, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).^{[Note125: Adili, Access to Information in Kenya, Issue 155 (Transparency International - Kenya, Oct-Nov 2015) https://tikenya.org/wp-content/uploads/2017/06/adili-155-access-to-information-in-kenya.pdf. ]} In addition, the 2010 Constitution guarantees the right to access information. However, in practice, there have been several pieces of legislation that have contradicted the right to information (e.g. the Official Secrecy Act, the Service Commissions Act, and National Assembly Powers and Privileges Act) and access to information has been weak.^{[Note126: Id.]} Efforts to develop and pass an implementing law for ensuring access to information in practice had not taken shape until August 2015 when the Access to Information Bill, 2015, sponsored by Hon. Priscilla Nyokabi, underwent the first reading at the National Assembly.

During the development of the action plan, the Access to Information Bill was being drafted and negotiated in parliament. This commitment is twofold, seeking to pass the legislation into law, and then bringing official record management up to standard to enable officials to locate and disclose information requested through a new FOI system.

If this commitment is fully implemented, it would improve access to information and management of public records in a transformative way. Creation of complete, accessible and authentic records is seen as an essential pre-requisite for effective implementation of the access to information law. Furthermore, the passage of the access to information law enshrines in law a number of progressive freedom of information principles, as it affirms a legally enforceable right for every citizen to access all information held by public entities and private bodies; clear and simple procedures for assessing information; the creation of a comprehensive proactive disclosure regime; and a provision for exempt information subject to international standards. The commitment is coded as relevant to access to information.

8.1. Pass Access to Information Legislation

The passage of the draft Access to Information Bill 2015 legislation is assessed as a transformative action, as it would be an enabling legislation to fully realise in practice the right to information guaranteed to Kenyan citizens under the 2010 Constitution. The Bill will promote proactive publication, dissemination, and public access to information by the Kenyan public, further protecting 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 stipulates a 21-day period for responding to information requests, and includes a mechanism of redress in the case of delayed government response. If the government refuses to grant access or hides some of the information through redaction, or if the public servant asked for specific information charges exorbitant fees, gives stale information or refuses to update existing information that is out of date, then the public can report the matter to the Commission on Administrative Justice for review and enforcement orders. If found guilty, civil servants will be fined up to 50,000 KES or spend three years in jail.^{[Note127: Kenneth Odero, 'Kenya's New Access To Information Act Will Compel Public Entities To Disclose Information Upon Request' (IAfrikan Digital, accessed 12 Feb. 2018) https://www.iafrikan.com/2016/09/13/kenyas-new-access-to-information-act-will-compel-public-entities-to-disclose-information-upon-request/.]}

8.2. Review of Public Archives and Documentation Service Act & Record Disposal Act

Kenya’s Public Archives and Documentation Service Act seeks to facilitate the management of public sector records in Kenya. It is seen as a success story by many other African archival institutions. The Department has made major strides in developing record services, opening five regional centres and partially automating most of its finding aids. The goal of the Regional Archives is to systematically offer critical advice on proper management of public records to government ministries, departments, state corporations and county governments, among other public bodies, with a view to improving record management systems, procedures and practices. However, major aspects of managing public sector records remain chaotic and many civil servants flout regulations governing the management and disposal of public records. The National Archives must focus on the management of the entire lifecycle of records rather than managing only the archival preservation stage and enhancing accessibility of government records. Reviewing these two laws will ensure this is done and that the responsibility for record keeping is shared between government agencies and the Kenya National Archives and Documentation Service (KNADS).

8.3. Develop and implement comprehensive record management policies, procedures and guidelines

Sections 4 and 7 of the Public Archives and Documentation Service Act, Chapter 19, Laws of Kenya have provisions on record management. These provide guidelines for permitting public examination of any public records, and advice on the care, preservation, custody and control thereof. The law covers transference of custody of any public records, which should be housed in the national archives. The current government practice is that public record management in Kenya is governed by the Public Archives and Documentation Service Act, Cap 19, 1965 (Revised 2003) and reviewed by the Access to Information Act 2016. Additionally, several rules, regulations and circulars have been issued to address effective management of records.^{[Note128: They include: The Records Disposal Act, Cap. 14, 1962; The Anti-Corruption and Economic Crimes Act, 2003; Public Officer Ethics Act, 2003; Statistics Act, 2006; Public Procurement and Disposal Act, 2005; Public Audit Act, 2003; Government Land Act, Cap. 280, 1915; Registered Land Act, Cap. 300, 1963; Value Added Tax Act, Cap. 476, 1990; Financial Management Act, 2004; Directorate of National Intelligence Service Act, 1998; The Evidence Act, Cap. 80, 1977 (Revised 1989); Kenya Information and Communication Act, No. 2 of 1998 (Revised 2009); Freedom of Information 2007; Government Financial Regulations and Procedures, Chapter, 23 §3 – 5; Ministry of State for Public Service - Personnel letter No. 1/2008 (DPM.12/6A Vol. 1 (71); ISO 15489 (2001): Information and Documentation – Records Management; Kenya Police Standing Orders, 2001; Government of Kenya Security Manual, 2005; and Departmental Records Retention Schedules.] Despite the efforts made by the government, record management in the country remains a challenge due to lack of standardised practices and procedures. This milestone therefore seeks to implement comprehensive record management policies, procedures and guidelines to address these challenges. Its impact is moderate because if the milestone is fully implemented, properly managed records would contribute to policy formulation, leading to faster decision-making and more efficient and effective public service delivery.}

8.4. Develop minimum technical requirements for implementation of Electronic Document & Records Management System (EDRMS)

An electronic document and record management system (EDRMS) is a type of content management system and refers to integrating the combined technologies of document and record management systems. Electronic document and records management aims to manage documents and records throughout the document lifecycle, from creation to destruction. This milestone will therefore seek to develop the minimum technical requirements for the implementation of the EDRMS. It impact is coded as moderate because the EDRMS software would manage all government documents and records across the government ministries, departments and agencies. Also, in today’s digital world where global mobile data traffic is increasing, managing electronic records stemming from social media platforms, emails, etc. is equally important.

8.5. and 8.6. Strengthen the capacity of record management professionals and public officials and establish a programme of public education for citizens and public officials about the right to protect, preserve and access information

These two milestones seek to strengthen the capacity of record management professionals and public officials and to establish a programme of public education for citizens and public officials about the right to protect, preserve and access information. Low capacity in record management is recognised as a challenge within the civil service as well as the general citizenry. KNADS already operates a research and education program, and an outreach program. These programs will therefore be strengthened. The two milestones have a clear target group but lack specificity regarding individuals within the identified public service and general public groups. Given that the target group and program content is unclear, the IRM researcher rated these milestones as having minor potential impact.

8.7. Establish a central digital repository for government records and data and all information of public interest

The current government practice is that the respective government ministry, department and agencies have a repository of government records and data that is closely managed by KNADS. A central repository will allow for an online and one-stop solution for government records and data and allows for faster, easier information access and secured archival retrieval.

Completion

8.1. Pass Access to Information Legislation – Complete

The Access to Information Act^{[Note129: Access to Information Act, No. 31 of 2016, available at kenyalaw.org/lex/actview.xql?actid=No.%2031%20of%202016.] was passed in August 2016 to give effect to Article 35 of the Constitution and to confer on the Commission on Administrative Justice (CAJ) the oversight and enforcement functions and powers. The enactment of this law was the culmination of years of advocacy, undertaken principally by civil society, to have a right to information law in place; instrumental CSOs included Article 19, Transparency International Kenya, and ICJ Kenya under the auspices of the freedom of information network. The role of the CAJ in this respect includes handling complaints relating to access to information; consideration of reports from public bodies on implementation of the Act; and monitoring Kenya’s implementation of international obligations relating to access to information.}

The national archives director indicated that they have formally initiated a working relationship with the CAJ through a formal letter to the commission. They have held consultations on how to effectively implement the Access to Information Act, especially regarding the protection, preservation and destruction of government records. The public is keen to have the law fully implemented and the information request process institutionalised in practice. For example, a law firm and one of the media houses made a request for the records of a report on judges and vetting board, particularly on the judges who were dismissed. This is in accordance with the access to information law, which provides for a 21-day hold to publish any requested government record as opposed to the 30-year hold envisioned in the public archives and documents service Act, CAP 19 of the Kenyan laws.

8.2. Review of Public Archives and Documentation Service Act & Record Disposal Act – Substantial

Some provisions of the Public Archives and Documentation Service Act and the Record Disposal Act were reviewed by the enactment of the Access to Information law in 2016. In addition, the National Archives has held two internal meetings and consultations to identify areas for review in these two acts to bring them in line with the Constitution and the Access to Information Law. The draft review areas were submitted to the Permanent Secretary in the Ministry of Culture, Sports and Arts for further comments and to ensure ownership. Further, legal officers from the National Archives submitted a copy of the review areas to the AG for his legal advice.

8.3. Develop and implement comprehensive records management policies, procedures and guidelines – Substantial

The National Archives has supported the development of various policies and guidelines for individual government ministries, departments and agencies instead of having one national policy. This is because MDAs and organisations face different record management challenges. In the period between 2014 and 2017, it is estimated that 10 to 20 MDAs, including county governments, have benefited from the support of the National Archives to develop their record management policies. A Ministerial Procedural manual has also been adopted and is to be included under ISO-Standards of the ministry.

8.4. Develop minimum technical requirements for implementation of Electronic Document & Records Management System (EDRMS) – Limited

Records and Information Management East Africa (RIMEA) held an EDMS workshop on digitising records and automating processes and workflows from 3 to 7 October 2016 in Naivasha, Kenya for record management officers, record managers, administration officers, information scientists, ICT managers, ICT officers and knowledge managers from both the private and public sector. The theme for the workshop was 'Electronic Document Management Systems: Using Records and Digitization to reduce inefficiency and curb corruption.'

This milestone has not been implemented fully. The National Archives has developed internal standards but has not issued them to MDAs. The National Archives has also procured servers for storing electronic data so that when standardised EDRMs is developed and implemented, records will fit into the server seamlessly.

8.5. Strengthen the capacity of record management professionals and public officials – Complete

The National Archives held seminars and lectures for record management officials to educate them on record classifications. Beyond improving management, this also educates officials on the various archival sources, who may then better enable users in identifying valuable information. Counties have also been involved as their capacity is low and new, being only instituted by the 2010 Constitution. The National Archives have formally reached out to the counties for this partnership and they have also received requests for capacity-building from the counties.

8.6. To establish a programme of public education for citizens and public officials about the right to protect, preserve and access information (Milestone 5 and 6) – Complete

In the area of education, historical films and video shows are organised for schools, visiting teams, and members of the public on the premises, free of charge. Conducted tours of the KNADS Art Gallery, which features a permanent exhibition and lectures on selected historical subjects, are given to these teams on request. This forms part of the continuing education on the value of the various archival sources of information for all prospective users. Lectures to schools and colleges are tailored according to their syllabi. The KNADS outreach publicity programme sends brochures and newsletter to all schools in the country (except those in distant North Eastern districts) that encourage the schools, colleges and other learning institutions to visit KNADS. This will educate younger generations to be potential users. Tourists stand to benefit from Kenya’s research and education service by sampling a variety of African art, cultural, and Kenyan history displays in the Art Gallery.

8.7. Establish a central digital repository for government records and data and all information of public interest – Not started

The central digital repository is yet to be established. The EDRMS integrated platform envisioned in Milestone 4 will create an online repository and one-stop solution for effective service delivery and public accountability as it allows for faster and anytime-anywhere information access and secured archival retrieval.

Meetings have been held with an e-governance department and the team developed a prototype policy but it has not been formally signed and adopted. The location of the datacentre has been identified and the public works ministry has provided guidance on how repository would appear. A retreat was held to develop guidance in the utilisation of the central digital repository for government records and data.

The National Archives Director noted that information and records are available in their offices (e.g. reports from COB, AG, etc.) and there is need to publish the available information to encourage usage. However, inadequate resources is a hindrance. Further collaboration is required to fully implement the milestone.

Early Results

Citizens are already using the provision for access to information. For instance, the respondent at CAJ indicated that the first complaint relating to access to information was filed with the Commission on Administrative Justice (the Office of the Ombudsman) seeking to have Safaricom Limited (a private company) release data pertaining to a registered mobile phone number. This is just but a single case that demonstrates the import of the Access to Information Act, 2016. The National Archives Director received information requests as well. The new law provides for access to information and requires public and private entities to, among other things, facilitate access and publication of information held by them; the law also requires publication of any public contract and policies affecting the public. It is too early to assess results on the commitment as many of the milestones are still in progress.

Next Steps

It is recommended to include an access to information commitment in the next action plan. Commitments in this area need to aim at the effective implementation of the provisions within the ATI Act and the empowerment of oversight institutions such as the Commission on Administrative Justice and the National Archives.

To ensure timely and effective implementation of the Act in practice, regulations must be developed through stakeholder-wide consultations to further operationalise the law.

✪8. Right to Information and Records Management

Commitment Text:

Status quo or problem/issue to be addressed: The backbone of a transparent and accountable government is strong records management. Modernization of records management improves performance and promotes openness and accountability by better documenting the actions and decisions of the government. The transition to digital information creates new opportunities for records management, but much of government still relies on outdated systems and policies.

Main Objective: Improve the quality and storage of records created across the public service with a view of improving service delivery to the citizens.

Brief Description of Commitment: Improve management of public records by developing and implementing comprehensive policies, procedures and systems that will ensure creation of complete, accessible and authentic records

Milestones:

1. Pass Access to Information Legislation
2. Review of Public Archives and Documentation Service Act & Record Disposal Act
3. Develop and implement comprehensive records management policies, procedures and guidelines
4. Develop minimum technical requirements for implementation of Electronic Document & Records Management System (EDRMS)
5. Strengthen the capacity of records management professionals and public officials
6. Establish a programme of public education for citizens and public officials about the right to protect, preserve and access information
7. Establish a central digital repository for government records and data and all information of public interest

Responsible Institution: Ministry of Sports, Culture and the Arts

Supporting Institutions: Ministry of ICT; ICT Authority; Commission for Administrative Justice; all public entities; ICJ – Kenya; Article 19 Eastern Africa; Transparency International – Kenya; and Freedom of Information Network

Start Date: 1 July 2016

End Date: 30 June 2018

Editorial note: This commitment is clearly relevant to OGP values as written, has transformative potential impact, and is substantially or completely implemented and therefore qualifies as a starred commitment.

Commitment Aim

The commitment sought to improve Kenya’s records management by passing the Access to Information (ATI) Act. It also called for a number of initiatives to facilitate access to information, such as developing comprehensive records management policies, carrying out access to information education for citizens and public officials, and establishing a central digital repository for government records and data, among others.

Status

Midterm: Substantial

By the midterm, this commitment was substantially completed. Notably, Parliament passed the ATI Act, and it came into effect on 21 September 2016 (Milestone 8.1). The ATI Act establishes every Kenyan citizen’s right to access information held by the State and by private bodies, where that information is required for the exercise or protection of any right or fundamental freedom. [92] The Commission on Administrative Justice (CAJ) has oversight and enforcement powers and functions, which include handling complaints relating to access to information and considering reports from public bodies on the Act’s implementation. [93]

The ATI Act does not override the Official Secrets Act (1970), a law was passed to limit citizen access to information that the government believes would compromise its internal security. The National Security Intelligence Service Act, No. 11 of 1998, buttressed this position. The ATI Act amended Section 3(8) of the Official Secrets Act to state that the secrecy law applies subject to Article 35 of the Constitution “and the law relating to access to information.” However, the ATI Act itself contains broad provisions on secrecy that could be used to limit access to information based on the ground of national security. For example, the right of access to information may be limited where this will “undermine the national security of Kenya.” [94] The ATI Act outlines the kinds of information that relates to national security in Section 6(2), and the list includes the following broad catch-all provision: “any other information whose unauthorized disclosure would prejudice national security.” [95]

The ATI Act establishes the link between access to information and records management (the key focus of the commitment) in Section 17, which provides that every public entity must keep and maintain records (written or electronic) that are accurate, authentic, usable, and have integrity, and in a manner that facilitates the right of access to information. In particular, every public entity must digitize its records and information management systems three years from the date when the ATI Act is first applied. [96]

The legal and institutional framework for records management, and for electronic records management in particular, nevertheless remained somewhat fragmented and outdated by the midterm. [97] A few meetings took place to review the Public Archives and Documentation Service Act, 1990 (PADSA) and the Record Disposal Act, 1962 (Milestone 8.2), but no substantive reforms were put forward beyond amendments already effected by the ATI Act. The PADSA vests responsibility for managing public records and archives in the Kenyan National Archives and Documentation Service (KNADS)—a situation commentators considered needed change so as to vest greater responsibility in the creators of records for management of their records along the entire cycle. [98]

By the midterm, failure to pass the ATI regulations perpetuated a lack of standardized practices and procedures for records management (Milestone 8.3). However, to respect the minimum technical requirements for implementation of an Electronic Document and Records Management System (EDRMS) (Milestone 8.4), the ICT Authority’s Electronic Records and Data Management Standard was approved in August 2016, and it came into effect in January 2017. [99]

Capacity building and public education initiatives on access to information and records management were undertaken by KNADs (Milestones 8.5 and 8.6). However, a central digital registry for government records and data was not yet established (Milestone 8.7).

End of term: Substantial

The commitment remained substantially completed by the end of the commitment period. According to the Director of the National Archives and Documentation Service, there is an urgent need to adopt the ATI regulations (Milestone 8.3) to prescribe the different publication schemes of public entities and fees applicable for access to information. On 10 September 2018, the Chairperson of the CAJ launched a taskforce to develop these regulations. [100] The taskforce draws membership from CAJ, Kenya Law Reform Commission, and the National Communications Secretariat under the Ministry of ICT.

The CAJ has mainstreamed access to information training for public officials through the performance contracting system, and it has sensitized a number of public bodies on their duties and obligations (Milestones 8.5 and 8.6). The CAJ’s public education outreach (Milestone 8.6) has included publishing information on the Act in print media, initiating a translation of a simplified version of the ATI Act into KiSwahili, sensitizing civil society actors, engaging through social media, [101] and attending events at the county level. For example, in April 2019 the CAJ hosted a stand at the Kisumu County ICT Consumer Forum where members of the public could obtain more information on the realization of the ATI Act. [102]

The government of Kenya has established an online centralized mechanism through the commission on administrative justice for the submission of access to information requests. [103] The portal enables details of the applicant and the application request to be captured. Requesters are nevertheless still encouraged to print, sign, and personally deliver their information request to the entity concerned. By the end-of-term report, there was no evidence on progress in developing a central digital registry of public records (Milestone 8.7).

No further progress had been made in reviewing the PADSA and Record Disposal Act (Milestone 8.2). Recent research also suggests that while the use of e-government in Kenya has grown significantly, the general status of e-records management is inadequately positioned to support e-government. [104]

Did It Open Government?

Access to Information: Major

The aim of the commitment was two-fold: seeking to pass access to information legislation, and bringing official record management up to standard, to enable officials to locate and disclose information requested through a new Freedom of Information (FOI) system.

The passage of the ATI Act represents the culmination of years of advocacy by civil society for a law to enforce constitutional provisions guaranteeing the public’s right to information. This first leg of the commitment is a major positive step forward, although it still remains limited in scale and scope. Prior to the commitment, an enforceable statutory right of access to information was neither entrenched nor exercised. The ATI Act is now in place, and citizens are beginning to exercise this right. Reports submitted to the CAJ show that during the 2017/2018 year, public entities received 2,664 requests, of which 2,440 (91 percent) led to information being disclosed. [105] The CAJ is also exercising its oversight and enforcement powers. During the first nine months of the ATI Act’s implementation, it handled 32 applications for review of public and private decisions on the right of access to information, of which 28 related to denials of access. [106]

Citizens are seeking access to information on broader governance issues and on matters that affect their lives. For example, one recent case from the Katiba Institute’s [107] archives involved asking how much money was spent during the election campaign period by the President’s Delivery Unit, essentially advertising the government’s achievements. The information was not forthcoming, but the court has ruled that it should be provided. This would not have been possible in the absence of an ATI law. However, in a case in which a lawyer sought information from utility Kenya Power to remedy inaccurate customer billing, a media report suggests that access to information is still an uphill battle in Kenya. Failure to finalize the ATI regulations, citizen awareness and education, and the pending passage of the Data Protection Bill [108] were cited as impediments. [109] The broad provisions in the ATI on national security are also a cause for concern.

The second leg of the commitment, standardizing and improving official record management, has not progressed as well. Technical standards for an EDRMS are in existence; these include the ICT Authority’s ICT Electronic Records and Data Management Standard of August 2016 and older standards developed by the Kenya Bureau of Standards. [110] Kenya has embraced e-government and a considerable volume of electronic records are being generated. [111] However, the institutional and legal framework for e-records management is still fragmented and unwieldy, split among individual ministries, the KNADS and the legislative authority of the PADSA, the Record Disposal Act, and the ATI Act. Failure to establish a centralized digital repository for government records and data may therefore inhibit the impact of FOI in Kenya in the future.

Carried Forward?

This commitment has not been carried forward to Kenya’s next action plan.