In July 2021, the Right to Information (RTI) Commission instructed the Minerals Commission to release information to The Fourth Estate at a cost of GH₵1.90 through the PDF format the media entity requested the information.
If the Minerals Commission was to release the information in hard copy, it was instructed to charge GH₵1.80 per page, according to the ruling of the RTI Commission.
But the Minerals Commission felt aggrieved and went to court to challenge the RTI Commission’s ruling. The High Court dismissed the Minerals Commission’s case and instructed it to release the information at the GH₵1.90 cost determined by the RTI Commission.
The Minerals Commission says it spent almost GH₵ 27,000 of public funds on the legal challenge.
The Minerals Commission had demanded one thousand dollars ($1,000) from The Fourth Estate in order to release the information, but both the RTI Commission and the court shot down that demand.
The cost incurred in challenging the RTI Commission’s ruling is almost four times what it had asked The Fourth Estate to pay for the information.
The Minerals Commission said it mounted the legal challenge as part of “our legal and constitutional right” to seek a judicial review of the RTI Commission’s decision.
The Minerals Commission disclosed the legal cost it incurred when The Fourth Estate filed an RTI request to ask for how much it spent in court.
“Kindly be informed that the cost incurred in pursuant of our legal and constitutional right of seeking the judicial review of the ruling of the RTI Commission in the High Court amounts to GH₵ 26, 831.25, inclusive of GTFL levy of 2.5%, NHIL/COVID levy of 3.5% and VAT of 12.5%,” the Minerals Commission said.
The RTI request that sparked the legal battle
The Fourth Estate had requested a list of licenced mining companies and those whose licences had been revoked. The media entity, through an RTI request, also wanted to know how much the Minerals Commission had raised from charges on the importation of earth-moving equipment.
“Kindly be informed that in accordance with section 75 of Act 989, Section 103 of the Minerals and Mining Act, 2006 (Act 703), as well as Regulation 4 of the Minerals and Mining (Licensing) Regulations,2012 (LI 2176), the application fee payable is the Ghana Cedi equivalent of five hundred US Dollars (US $500) per request. Thus, the applicable fee payable for the above information is the Ghana Cedi equivalent of one thousand US Dollars (US$1000),” the mining regulator said in response to the RTI request.
RTI advocates described the Minerals Commission’s demand of almost GHS 7000 for the information as “outrageous” and a “financial roadblock” to access to information.
The RTI Commission agreed with the advocates when The Fourth Estate wrote an appeal for a review of the Minerals Commission’s fees for information.
“The Commission directs the Chief Executive Officer of the Minerals Commission, Mr. Martin K. Ayisi, to ensure the application of a charge or fee of either 1.80 pesewas multiplied by the number of pages of information to be printed or 1.90 pesewas, if the information in its entirety is to be emailed to the Applicant in PDF format,” the RTI Commission ruled in July 2021.
The Minerals Commission described the ruling as “irrational, illegal, unconstitutional and flawed” in court.
High Court tussle and judgment
In its writ, the Minerals Commission argued that “…in so far as the information requested by the Interest Party relates to mineral rights, any information from the Register of the Mineral Rights, is to be furnished in accordance with the prescribed legal requirement which includes payment by the Interest Party of the statutory fee.”
It insisted that The Fourth Estate’s request fell under the Minerals and Mining Act 2006 (Act 703), which says the Commission shall maintain “a register of mineral rights in which shall be promptly recorded applications, grants, variations and dealings in, assignments, transfers, suspension, and cancellation of rights.”
The Minerals Commission said the $1,000 charge was from Parliament’s L.I 2176, titled “Minerals and Mining (Licensing) Regulation, 2012, an institution, the Minerals Commission argued, is clothed with more powers than the RTI Commission.
The RTI Commission said while it acknowledges the existence of regulation, L.I 2176, it does not apply to ordinary Ghanaians or journalists seeking statistical information, hence making the charge of $1,000 illegal.
The RTI Commission’s lawyer, Kwadwo Addeah-Safo, argued that in arriving at GH¢1.90 (approx. GH¢2) as the fee to be charged for PDF copies and GH¢1.80 per page for an A4 photocopy, the Commission relied on “the reasonable man’s test” since Parliament was yet to approve fees and charges under the RTI law.
The RTI Commission also noted that since citizens had a right to information, whatever fees charged should be “pegged at an amount only to cater for the cost of reproducing that information to the applicant”.
The High Court agreed with the RTI Commission.
“I cannot, but be bound by this sound reasoning of the highest court of the land that the inaction of Parliament should not prevent a constitutionally guaranteed right of a person to be violated. While it is within the remits of Parliament to engineer the necessary legislation to effectuate the demands and payment of fees under Act 989, the failure thereof, respectfully, cannot be a penal code for an applicant such as the instant,” Justice Gifty Adjei Addo ruled on March 17,2022.
“From the foregoing, I cannot accede to the contention of the applicant [Minerals Commission] that the respondent [RTI Commission] acted in excess of its jurisdiction, neither do I find any illegality, unreasonableness, or arbitrariness occasioned per the decision of the Respondent.
“Besides, I do not find the conduct of the Respondent in arriving at the impugned decision any error on its part patent on the face of the record, which error has occasioned a miscarriage of justice, to permit this Court to set aside the decision of the Respondent dated 19th July 2021.
“Accordingly, the instant action is dismissed for want of any merit,” leaving intact the RTI Commission’s ruling in July 2021.