In December 2021, the Attorney General’s Chambers made Application for Judicial Review against the Decision of the Information Commissioner to issue summonses for the production of records obtained or created by the Attorney-General’s Chambers. The court was asked to review –(1) Whether the Information Commissioner has a right to review a public authority’s refusal to disclose a record on the grounds that the Public Access to Information Act 2010 does not apply, and (2) Whether the Information Commissioner has a right to examine a record to which the Public Access to Information Act 2010 does not apply.
The recent ruling in the Supreme Court in the case of Attorney General v Information Commissioner demonstrates that section 4 of the Public Access to Information Act was written to recognise that the Act should not apply to operational records of certain public authorities such as the Attorney-General’s Chambers, Department of Public Prosecutions, Human Rights Commission, Office of the Ombudsman, etc., and even the judiciary. These types of public authorities have operations which touch upon some of the most sensitive and privileged information in our jurisdiction.
The decision was only about records which are outside of the ambit of the Act. This is not to be confused with records which do fall within the operation of the Act; the public access to these records remains undisturbed. Likewise, the Information Commissioner’s right to demand production of records that fall within the operation of the Act is not affected by the Supreme Court’s decision.
The judgement for the Attorney Generals’ Chambers is not a win for any particular public authority nor for any individual; the Supreme Court’s decision is a demonstration of the rule of law being upheld according to the literal interpretation of the express provisions in the Public Access to Information Act.
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