Procedure for accessing information in Kenya explained with appeals, refusals & exceptions. Learn your rights—Book our team of data protection lawyers today.

Introduction

The right of access to information is underpinned under the Constitution of Kenya 2010, Access to Information Act, 2016 (Section 8-15,23) andthe Access to Information (General) Regulations,2023 (8,13-27). Public bodies and private entities under certain circumstances are mandated to provide information to members of the public upon request in line with Constitutional values and Principles of governance such as:-Transparency and Accountability. However, the right to access information is subject to certain demonstrated exceptions such as national security.

The Legal Process for Accessing Information in Kenya

The procedure for accessing information from a public body is as follows: –

  1. An application to access information shall be made in writing in English or Kiswahili to the Information Access Officer. In case of illiteracy or disability that makes the applicant unable to make a written request, the information officer shall reduce to writing the request on behalf of the applicant. A public officer shall make a decision on an application within twenty-one days of receipt of the application unless a request involves a large amount of information. Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.
  2. An Information Access Officer may, not later than five days from the date of receipt of an application, transfer the application, to another public entity, if the information requested is held by that other public entity. The applicant shall be notified of the same within seven days from the date of receipt of the application and a decision shall be made within twenty-one days from when the application was first received.
  3. Upon the Information Access Officer making a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester; the reasons thereof; and the way forward.
  4. Where a decision is taken to provide the information applied for, an Information Access Officer shall send to the applicant a written response within fifteen working days of receipt of the application, advising: – that the application has been granted and the details of any fees or further fees to be paid for access,
  5. Upon receipt of the fee payable, an Information Access Officer shall provide the information to the applicant not later than two working days from the date of receipt of the payment.

NB: The same process is applicable to private bodies with the necessary modification to an application for access to information.

Review/Appeal to Refusals (Section 14 and 23 of the Act)

  • If a public or private entity refuses to grant an applicant access to information, the applicant may apply in writing to the Secretary of the Commission on Administrative Justice (Commission) requesting a review of the decision. Such an application shall be made within thirty days, or such further period as prescribed by the Commission from the day on which the decision is notified to the applicant.
  • A person dissatisfied with the decision of the Commission may appeal to the High Court within twenty-one days from the date of the decision of the Commission.
  • The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order: –

(a)the release of any information withheld unlawfully;

(b)a recommendation for the payment of compensation; or

(c)any other lawful remedy or redress.

  • An order of the Commission as listed above may be filed in the High Court by any party and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order.
  • If no appeal is filed, the party in favour of whom the order is made by the Commission may apply ex-parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the High Court.

Exceptions (Section 6 of the Act).

There are circumstances in which the right to access information as provided under Article 35 of the Constitution of Kenya shall be limited namely, where the information is likely to: –

(a)Undermine the national security of Kenya, such as military strategy;

(b)impede the due process of law;

(c)endanger the safety, health or life of any person;

(d)involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;

(e)substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

(f)cause substantial harm to the ability of the Government to manage the economy of Kenya;

(g)significantly undermine a public or private entity’s ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;

(h)damage a public entity’s position in any actual or contemplated legal proceedings; or

(i)infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

Some factors to be taken into consideration include: –

  • If requested information reveals a serious public safety or environmental risk, both the unwarranted invasion of privacy and prejudice of commercial interests of third parties shall not be prohibited.
  • Despite the limitations outlined, a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.
  • A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means
  • Unless the contrary is proved by the public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty years.

Courts’ decisions

In the case of Khalifa & another v Principal Secretary, Ministry of Transport & 4 others; Katiba Institute & another (Constitutional Petition E032 of 2019) (2022), the petitioners had requested for agreements, contracts, and memorandum of understanding in relation to the SGR project. The respondents had refused to give the information citing national security reasons. The High Court held that, restrictions on information based on national security should have a genuine purpose and demonstrable effect of protecting legitimate national security interests. Additionally, the restriction should be prescribed by law. Consequently, the court issued a declaration that the failure by the respondents to provide information was a violation of the right to access information.

The case of Edwin Harold Dayan Dande and 3 others v The Inspector General, National police Service and 5 others (2022) was before the Supreme Court and it touched on private entities. One of the issues of determination in the appeal was distinguishing between the right to access to information held by a public body vis-a-vis a private person.It was the appellants’ contention that the Court of Appeal adopted a narrow interpretation of the right to access to information held by a private body. They also posited that the only test to be met under Article 35 is for a person to demonstrate that the information is required for the exercise or protection of a right or fundamental freedom under the Constitution. They argued that the information sought was necessary and a prerequisite for the realization of the right to dignity which is the foundation of other rights.

However, the Supreme Court in agreeing with the respondents held that, despite the appellants citing several rights that they sought to protect using the information, they failed to demonstrate any nexus between the information sought and the rights to be protected. Additionally, failure by the appellants to establish the connection between the rights to be protected and the information requested meant that if they were to be granted that information, there would be unwarranted invasion of the privacy of other third parties thus causing substantial prejudice to their commercial interests.

In summation, the Supreme Court was simply saying that in order to request information from private entities, by virtue of Article 35(1) b of the Constitution and Section 4 of the Act a requester has to demonstrate:

a. The right that seeks to be protected; and

b. That access to the information is required to exercise or protect that right.

Conclusion

To sum up, it is evident that refusal to provide information to members of the public should be accompanied by genuine and demonstrable reasons which are prescribed by the law. Additionally, in seeking information from private entities, members of the public should be keen to state the right which they want to protect and demonstrate a link between the information sought and the rights to be protected.