Access to Information Act

Section 1. Short title Section This Act may be cited as the Access to Information Act.

Section 2. Interpretation Section information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, age, physical, psychological or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual;

Section 3. Object and purpose of the Act Section give effect to the right of access to information by citizens as provided under Article 35 of the Constitution;

Section 4. Right to information Section 4(1)(a) the State; and Section 4(1)(b) another person where that information is required for the exercise or protection of any right or fundamental freedom. Section 4(2)(a) any reason the person gives for seeking access; or Section 4(2)(b) the public entity's belief as to what the person's reasons are for seeking access. Section 4(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. Section 4(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6 . Section 4(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.

Section 5. Disclosure of information by public entities Section 5(1)(a) the particulars of its organization, functions and duties; Section 5(1)(a)(i) the particulars of its organization, functions and duties; Section 5(1)(a)(ii) the powers and duties of its officers and employees; Section 5(1)(a)(iii) the procedure followed in the decision making process, including channels of supervision and accountability; Section 5(1)(a)(iv) salary scales of its officers by grade; Section 5(1)(a)(v) the norms set by it for the discharge of its functions; Section 5(1)(a)(vi) guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and Section 5(1)(a)(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person; Section 5(1)(b) during the year commencing on first January next following the first publication of information under paragraph (a...

Section 6. Limitation of right of access to information Section 6(1)(a) undermine the national security of Kenya; Section 6(1)(b) impede the due process of law; Section 6(1)(c) endanger the safety, health or life of any person; Section 6(1)(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; Section 6(1)(e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained; Section 6(1)(f) cause substantial harm to the ability of the Government to manage the economy of Kenya; Section 6(1)(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; Section 6(1)(h) damage a public entity's position in any actual or contemplated legal proceedings; or Section 6(1)(i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession. Section 6(2)(a) military str...

Section 7. Designation of information access officer Section 7(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act. Section 7(2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity.

Section 8. Application for access Section 8(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. Section 8(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs. Section 8(3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request. Section 8(4) A public entity may prescribe a form for making an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.

Section 9. Processing of application Section 9(1) Subject to section 10 , a public officer shall make a decision on an application as soon as possible, but in any event, within twenty-one days of receipt of the application Section 9(2) 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. Section 9(3)(a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or Section 9(3)(b) consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time. Section 9(4)(a) whether or not the public entity or private body holds the information sought; Section 9(4)(b) whether the request for information is approved: Section 9(4)(c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and Section 9(...

Section 10. Transfer of application Section 10(1) An information access officer may, not later than five days from the date of receipt of an application, transfer the application or any relevant part of it, to another public entity, if the information requested is held by that other public entity. Section 10(2) Where an application is transferred under subsection (1), an information access officer shall inform the applicant immediately but in any event not later than seven days from the date of receipt of the application, about such transfer. Section 10(3) A public entity to which an application is referred by an information access officer under subsection (1) shall make a decision on the application within twenty-one days from the date that the application was first made. Section 10(4) The provisions of this section shall apply with the necessary modification to an application for access to information that is made to a private body to which this Act applies.

Section 11. Providing access to information Section 11(1)(a) that the application has been granted; Section 11(1)(b) that the information will be contained in an edited copy, where applicable; Section 11(1)(c) the details of any fees or further fees to be paid for access, together with the calculations made to arrive at the amount of the fee; Section 11(1)(d) the method of payment of such fees, if any; Section 11(1)(e) the proposed process of accessing the information once the payment if any is made; and Section 11(1)(f) that an appeal may be made to the Commission in respect of the amount of fees required or the form of access proposed to be provided. Section 11(2) Subject to subsection (3), upon receipt of the fee payable, an information access officer shall provide the information to the applicant or permit the relevant inspection immediately but in any event not later than two working days from the date of receipt of the payment. Section 11(3) Any information to be made accessible to an applicant shall be produced forthwith at the place where it is kept, for inspection in the form in which it is held unless the applicant requests that it be made available in another form and, i...

Section 12. Fees Section 12(1) No fee may be levied in relation to the submission of an application. Section 12(2) A public entity or private body from which an application for access to information has been made may charge a prescribed fee for the provision of the information and the fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant. Section 12(3) Subject to subsection (2), the Cabinet Secretary shall make regulations prescribing the fees payable for expenses incurred in providing information to an applicant.

Section 13. Correction of information Section 13(1) At the request of the applicant, a public entity or private body shall within reasonable time, at its own expense, correct, update or annotate any personal information held by it relating to the applicant, which is out of date, inaccurate or incomplete. Section 13(2)(a) state that it is a request to amend certain personal information relating to the applicant; Section 13(2)(b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and Section 13(2)(c) specify the remedy sought by the applicant.

Section 14. Review of decisions by the Commission Section 14(1)(a) a decision refusing to grant access to the information applied for; Section 14(1)(b) a decision granting access to information in edited form; Section 14(1)(c) a decision purporting to grant access, but not actually granting the access in accordance with an application; Section 14(1)(d) a decision to defer providing the access to information; Section 14(1)(e) a decision relating to imposition of a fee or the amount of the fee; Section 14(1)(f) a decision relating to the remission of a prescribed application fee; Section 14(1)(g) a decision to grant access to information only to a specified person; or Section 14(1)(h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13 . Section 14(2) An application under subsection (1) shall be made within thirty days, or such further period as the Commission may allow, from the day on which the decision is notified to the applicant. Section 14(3) The Commission may, on its own initiative or upon request by any person, review a decision by a public entity refusing to publish information that it i...

Section 15. Notice to interested party Section In reviewing a decision in terms of this Act, the Commission may, where necessary, give notice to any third party to whom the information relates unless the necessary steps to locate the third party have been unsuccessful.

Section 16. Protection of person making disclosure Section 16(1) A person shall not be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of an office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity, if the disclosure is of public interest. Section 16(2) For purposes of subsection (1), a disclosure which is made to a law enforcement agency or to an appropriate public entity shall be deemed to be made in the public interest. Section 16(3) A person shall make a disclosure under subsection (1) or (2) where such person has reasonable belief in the veracity of the information. Section 16(4) Any person who provides false information maliciously intended to injure another person commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both. Section 16(5)(a) violations of the law, including human rights violations; Section 16(5)(b) mismanagement of funds; Section 16(5)(c) conflict of interest;...

Section 17. Management of records Section 17(1) In this section, "records" means documents or other sources of information compiled, recorded or stored in written form or in any other manner and includes electronic records. Section 17(2)(a) records that are accurate, authentic, have integrity and useable; and Section 17(2)(b) its records in a manner which facilitates the right of access to information as provided for in this Act. Section 17(3)(a) create and preserve such records as are necessary to document adequately its policies, decisions, procedures, transactions and other activities it undertakes pertinent to the implementation of its mandate; Section 17(3)(b) ensure that records in its custody, including those held in electronic form, are maintained in good order and condition; and Section 17(3)(c) not later than three years from the date from which this Act begins to apply to it, computerize its records and information management systems in order to facilitate more efficient access to information.

Section 18. Offence of alteration, defacement, blocking, erasure, etc. Section 18(1) Where an application to access information has been made to a public entity under section 8 and the applicant would have been entitled, subject to payment of any fee, to provision of any information in accordance with that section, any person to whom this section applies commits an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public entity, with the intention of preventing the disclosure by that entity of all, or any part, of the information provision of which the applicant would have been entitled. Section 18(2) Subsection (1) applies to the public entity and to any person who, is employed by, is an officer of, or is subject to the direction of, the public entity. Section 18(3) A person convicted of an offence under subsection (1) shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both.

Section 19. Defamatory matter in information released Section Where any information provided by a public entity or private body to an applicant under section 11 was supplied to the public entity or private body by a third person, the publication to the applicant of any defamatory matter contained in the information shall be privileged unless the publication is shown to have been made with malice.

Section 20. Role of the Commission Section 20(1) The Commission is hereby granted the powers of oversight and enforcement of this Act. Section 20(2) In the performance of its functions under this Act, the Commission shall be guided by the national values and principles of the Constitution. Section 20(3) The Commission shall designate one of the Commissioners as "Access to Information Commissioner" with specific responsibility of performing the functions assigned to the Commission under this Act.

Section 21. Functions of the Commission Section 21(1)(a) investigate, on its initiative or upon complaint made by any person or group of persons, violation of the provisions of this Act; Section 21(1)(b) request for and receive reports from public entities with respect to the implementation of this Act and of the Act relating to data protection and to assess and act on those reports with a view to assessing and evaluating the use and disclosure of information and the protection of personal data; Section 21(1)(c) develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data; Section 21(1)(d) work with public entities to promote the right to access to information and work with other regulatory bodies on promotion and compliance with data protection measures in terms of legislation; Section 21(1)(e) monitor state compliance with international treaty obligations relating to freedom of and right of access to information and protection of personal data; Section 21(1)(f) hear and determine complaints and review decisions arising from violations of the right to access to information; Section 21(1)(g) prom...

Section 22. Inquiry into complaints Section 22(1) A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose. Section 22(2) A complaint lodged under subsection (1) shall be in such form and contain such particulars as the Commission may, from time to time, prescribe. Section 22(3)(a) if the information or report called for is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report; and Section 22(3)(a)(i) if the information or report called for is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report; and Section 22(3)(a)(ii) if on receipt of the information or report the Commission is satisfied either that no further action is required or that the required action has been initiated by the public entity, the Commission shall, in writing, inform the complainant accordingly and take no further action; or Section 22(3)(b) without prejudice to paragraph (a), initiate such i...

Section 23. Powers of the Commission Section 23(1)(a) issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission; Section 23(1)(b) question any person in respect of any subject matter under investigation before the Commission; and Section 23(1)(c) require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission. Section 23(2)(a) the release of any information withheld unlawfully; Section 23(2)(b) a recommendation for the payment of compensation; or Section 23(2)(c) any other lawful remedy or redress. Section 23(3) A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made. Section 23(4) An order of the Commission under subsection (2) may be filed in the High Court by any party thereto in such manner as the Commission may, in regulations made in consultation with the Chief Justice, prescribe and such party shall give written notice of the filing of the order to all other parties within...

Section 24. Powers relating to investigation Section 24(1) The Commission may, for the purpose of conducting any investigation pertaining to an inquiry, utilize the services of any public officer or investigation agency of the Government and where a public officer is so utilized under this subsection, the Commission shall pay such expenses as may be incurred by the public officer or agency for the service rendered. Section 24(2)(a) summon and enforce the attendance of any person for examination; Section 24(2)(b) require the discovery and production of any information; Section 24(2)(c) subject to the provisions of this Act, requisition any public records or copy thereof from any public officer; and Section 24(2)(d) take a statement under oath in relation to any investigation it is undertaking. Section 24(3) The provisions of section 23 shall apply in relation to any statement made by a person before any public officer or agency whose services are utilized under subsection (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. Section 24(4) The public officer or agency whose services are utilized under subsection (1) sh...

Section 25. Regulations Section 25(1) The Cabinet Secretary may, in consultation with the Commission, make regulations, prescribing anything required by this Act to be prescribed or generally for the better carrying into effect the provisions of this Act. Section 25(2)(a) the manner in which applications under this Act shall be made; Section 25(2)(b) the form in which information requested under this Act shall be supplied; Section 25(2)(c) the making of an application for personal information by representatives of the person to whom the information relates; Section 25(2)(d) the measures to be taken by public entities to facilitate the exercise by persons of their rights under this Act; Section 25(2)(e) the measures to be taken by public entities to ensure that adequate records are created and maintained by the entities; Section 25(2)(f) the procedures for the making of an application by a complainant for the review by the Commission, of a decision made by a public entity relating to access to information; Section 25(2)(g) the procedure to be followed by a public entity in consulting with a third party before giving access to information obtained by it from that party; Section 25(2)...

Section 26. Annual reports Section 26(1) The Commission shall submit an annual report to Parliament and may, at any time, submit special reports to the Cabinet Secretary on any matter relating to any of its functions. Section 26(2) The annual report submitted by the Commission under subsection (1) shall include an overall assessment by the Commission of the performance of the Government with regard to access to information during the period under review. Section 26(3) The Cabinet Secretary shall lay the annual report of the Commission before Parliament within two months of receipt thereof, with any comments thereon which the Cabinet Secretary considers necessary. Section 26(4) The Cabinet Secretary shall be required, in every year, to report to Parliament the steps which the Government has taken in implementing recommendations made in the Commission's reports.

Section 27. Reports by public entities Section the number of requests for information received by the entity and the number of requests processed;

Section 28. Offences and penalties Section 28(1) Any person who knowingly discloses exempt information in contravention of this Act commits an offence and is liable, on conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or both. Section 28(2) It shall be a defence to a charge under subsection (1) that the exempt information disclosed was already in the public domain at the time of disclosure. Section 28(3)(a) refuses to assist a requester who is unable to write to reduce the oral request to writing in the prescribed form and provide a copy to the applicant in accordance with section 8 (2); Section 28(3)(b) refuses to accept a request for information; Section 28(3)(c) fails to respond to a request for information within the prescribed time; or Section 28(3)(d) fails to comply with the duty to take reasonable steps to make information available in a form that is capable of being read, viewed or heard by a requester with disability in accordance with section 11 (3), commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months,...