Embu County Access to Information Act, no. 11 of 2015

1. This Act may be cited as the Embu County Access to Information Act, 2015 and shall come into operation upon publication in the gazette. Interpretation

2. In this Act unless the context otherwise requires— “county” means Embu County— “county public entity” means— (a) any county public office as defined under Article 2 of the Constitution: or (b) any county entity performing a function within a commission, office, agency or other body established under the Constitution; “edited copy” in relation to a document, means a copy of a document fram which exempt information has been deleted; “exempt information” means a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in any information system or other medium; “County Executive Committee Member” means County Executive Committee Member for the time being responsible for administration; “information” includes all records held by a county public entity, regardless of the form in which the information is stored, its source or the date of production; “information officer” means any officer of a county public entity designated under section 7 as such for purposes of this Act; oe "interested party" means a person who has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation; 78 No. 11 Embu Access to Information 2015 “national security” has the meaning assigned to it under Article 238(1) of the Constitution: “person” has the meaning assigned to it-under Article 261) of the Constitution: “persarnal infermation™ means informution about an identifiable . individual, including but not limited to- tae, (a) information relating to the race, gender, sex, pregnancy. marital > Status. national, ethnic or social origin, colour, age, physical, pig psychological or mental health, well-being, —_ disability, religion, conscience, belief, culture, language and birth of the a. individua.. = Seite (b) information rejating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in whieh the individualhas been involved: (c) any identifying number, — or other particular identity assigned to the individual; (4) the fingerprints: blood type, address, telephone or other contact details of the individual: (¢) a person's opinion or views over another person; ({) correspondence sent by the individual that is implicitly or explicily of a private or confidential nature and further correspondence that would reveal the contents of the original correspondence: (g) any information given in support or in relation to an award or grant proposed to be given to another person; “prescribed” means preseribed by the rules made under this Act: “private body" means any private entity or non-state actor that— (a) receives public resources and benefits, utilizes public funds, engages in public functions. provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources); or (b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment of public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any nght, “public officer” has the same meaning assigned to it under Article 260 of the Constitution; 719 2015 Embu Acvess to Information No. 1] “sublic record’ includes any writing containing information relating to the conduct of the public's business, prepared, owned, used or retained by a county public entity regardless of physical form or characteristics; Objects of the Act

3. The abjects of tus Act are to— (a) Give effect to the right of access to information by citizens as provided for under Article 35 of the Constitution and Section 96 of the County Governments Act, 2012; (b) require public entities and private bodies to proactively disclose information that they hold and to provide information on réquest in line with the constitutional principles; (c) create a framework to facilitate access to information held by private bodies im compliance with any right protected by the Constitution and any other law: (d) promote routine and = systematic information disclosure by public service and private service on constitutional principles relating to accountability, transparency and public participation and access to information: (e) provide for the protection of persons who release information of public interest in good faith; and (f) Provide a framework to facilitate public education on the right to access information under this Act. PART [I—RIGHT TO INFORMATION Right to information oe

4. (1) Subject to this Act and any other law, every citizen has Sie the night of access to information held by— ia) the County Government; and Sat (b) Any other person and where that information is required for the exercise or protection of any right or fundamental freedom. (2) Subject to this Act, every citizen's right to access information is not affected by— (a) Any reason the person gives for seeking access; or (b) The county public entity's belief as to what are the reasons for seeking access. 80 No. 11 Embu Access to Information 215 (3) Access to information held by a county public entity or private body shall be provided expeditiously. {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. (5) Nothing in this Act shall limit or otherwise restrict any other legislative requirement for a county public entity, or a private body, to disclose information. Proactive disclosure §. (1) A county public entity shall— (a) facilitate access to information, and the information may include— (i) the particulars of its organization, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) salary scales of its officers by grade; (v) the norms set by it for the discharge of its functions; (vi) any guidance used by it in relation to 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 (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 consulted by any person; (b) during the year commencing on first January next following the first publication of information under paragraph (a), and during each succeeding year, cause to be published statements updating the information contained in the previous statement or statements published under that paragraph; (c) publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has ima, 4 $1 2015 Embu Access to Information No. 11 reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles: (d) provide to any person the reasons for any decision taken by it in relation to that person; (e) upon signing any contract, publish on its website or through other suitable means the following particulars in respect of the contract entered into— (i) the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference; (ii) the contract sum; (iii) the name of the provider, contractor or individual to whom the contract has been granted; and (iv) The periods within which the contract shall be completed. eal (2) Information shall be disseminated taking into consideration the need to reach persons with disabilities, cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available for free or at a cost taking into account the medium used. (3) Ata minimum, the material referred to in sub-section (1) shall be made available— a (a) For inspection by any person without charge; (b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and —— supplying them may be made; and (c) On the internet, provided that the materials are held by the Authority in electronic form. = (4) Subsection (I) (a) shall come into operation twelve months after the commencement of this Act, Exempt information

6. (1) Despite sections 4(1) and 5, exempt information may be withheld by a county public entity or private body where it is satisfied that disclosure of such information. is likely to— << (a) undermine the national security of Kenya, (b) impede the due process of law or endanger the safety or life of any person; =reer aD No. 11 Embu Access to Information 2015 (¢) involve the unwarranted invasion ofthe privacy ofan individual, other than the applicant or the person on whose behalf an application has, with the proper Authority, been made; (d) infringe on the commercial interests. ineluding intellectual property rights. of that entity or third perty from whom information was obtained: (¢) cause substantial harm tw the ubility ef the Gowemment to manage the economy of the county; (f) significantly undermine a county public entity's abilityto give adequate and judicious consideration1 4 matter coneerming which no final decision has sa taken and which remains the subject of active consideration; (¢) damage a county public entity's position in any actual or contemplated legal proceedings: or (h) infringe legal professional privilege. (2) For purposes of subsection (1) (a), information relating to national security inchedes— . (a) military strategy, doetrine, capability, capacity or deployment; (b) foreign Government information with implications on national secunty, (e) intelligence activities. sources, capabilities, methods or cryptology: (d) forcign relations or foreign activities: (¢) scientific, technology or economic matiers relating to national security: (f) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security. (3) Subsections (1) (d) and (e) shall not apply if a request for information relates to the results of any product of environmental te and the information concerned reveals a serious public safety or environmental risk. (4) Despite anything contained in subsections (1) and (2), a county public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harnt to protected ‘interests, 83 2015 Emby Access to Information No. tl (5) In considering the public interest referred in subsection (4), particular regard shall be had to the constitutional principles on the need to— (a) promote accountability of public entities to the public: (b) ensure that the expenditure of public funds is subject wo effective oversight; (¢) promote informed debate on issues of public interest: (d) keep the public adequately informed about the existence of any danger to public health or safety or to the environment: and {e) Ensure that any statutory Authority with regulatory responsibilities is adequately discharging its functions. (6) Unless the contrary is proved by the county public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty (30) years. (7) Any person who discloses exempt information in contravention of this Act commits an offence and is liable, on conviction, to a term not ee exceeding three (3) years: Provided that it shall not be an offence if the exempt information Se disclosed ts in public domain. SS PART III—ACCESS TO INFORMATION Designation of Information Office

7. (1) A Chief Executive Officer of the county or of a county public entity as the case may be. shall be the information officer for purposes of this Act. (2) A Chief Executive Officer of the county or of a county public entity as the case may be. may delegate the performance of their duties as aninformation officer under this Act to any officer of the county public entity. Application to access information

8. (1) An application to access information shall be made 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. (2) Despite subsection (1), an applicant who, because of illiteracy or disability, is unable to make a written request for access to information in accordance — with subsection (1) may make that request orally and the public officer concerned shall reduce the oral seule 84 No. 11 Embu Access to Information 2015 request to writing in the prescribed form and provide a copy to the requesting individual. Whe (3) A county public entity may prescribe aform for making an H application to access information, but any such form shall not be such in as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only ia ah the applicant has not used the prescribed form. ra Processing of application 9 (1) Subject to section 10, a public officer shall make a eat aI decision on an application as soon as possible, but in any event, within fwenty one days of receipt of the application. Provided that where the information sought concerns the life or liberty of a person, the information shall be provided within forty-eight hoursof receipt of the application or not later than fifteen working days where the application is complex or relates to a large volume of information. (2) A public officer referred to in subsection (1) may seek the assistance of any other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance. (3) Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected. (4) An information officer who fails to respond to a request for information within the prescribed time commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings or imprisonment for three months, or to both. Transferof application

10. (1) An information 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 county public entity, if the information requestedis held by that other county public entity. (2) Where an application is transferred under subsection (1) an information officer shall inform the immediately but in any event not later than seven days from the date of receipt of the application, about such transfer. (3) A county public entity to which an application is referredby an information officer under subsection (1) shall make a decision on the 85 2015 Embu Access to Informarion ee No. 11 application within fifteen days from the date that the application was first made. (4) An information officer who fails to respond to a request for information within the prescribed time commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings or imprisonment for three months, or both, (5) Where a request for information is to a private body, subsection (4) shall apply with necessary changes made. oe Providing access to information

1. (1) a decision is taken to provide the information applied for, an information officer shall send to the applicant a written response within fifteen working day's of receipt of the application, advising— ee (a) that the application be granted; (b) that the information will be contained in an edited copy, where applicable; {c) the details of any fees or further fees to be paid for access, oa together with the calculations made to arrive at the amount of the fee; (d) the method of payment of such fees, if any; (e) the proposed process of accessing the information once payment is made; and (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. (2) Subject to subsection (3), upon receipt of the fee payable, an information 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. (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, if it is practicable to do so, such information may be copied, reproduced or used for conversion to a sound transmission at the expense of the applicant. (4) Where a request for information is made to a private body, subsections (1), (2) and (3) shall apply with necessary modifications. 86 No. 11 Embu Access to Infarmation 2015 Fees

12. (1) No fee may be levied in relation to the submission of an anplication: (2) A county public entity or private body from which an application for accessto information has been made may charge a prescribed fee for ihe provision of the information and the fee shall not exceed the actual costs of making copies of such information and if’ applicable, supplying thern to the applicant. (3) Subject to subsection (2), the County Executive Committee Member shall make regulations prescribing the fees payable for expenses incurredin providing information to an applicant. Correction of information

13. (1) At the request of the applicant, a county 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. (2) A request under this section shall be made in writing to the county public entity responsible for the maintenance of the record system containing the out of date, inaccurateor incomplete information and shall— (a) state that it is a request to amend certain personal information relating to the applicant; (b) specify the personal information that is to be amended indicating how such information is out of date, inaccurate or incomplete; and (c) specify the remedy sought by the applicant. -PARTIV—REVIEW OF DECISIONS BY THE COUNTY EXECUTIVE COMMITTEE MEMBER, Review of decisions I4, (1) Subject to subsection (2), an applicant may apply |in writing to the County Executive Committee Member requesting a review of any of the following decisions of a county public entity or private body in relation to a request for access to information— A decision refusing to grant accessto the information applied for— (a) a decision granting access fo information in a restrictive’ manner; (b) a decision purportingto grant access, but not actually granting the access in accordance with an application; 87 2015 Embu Access to Information No. 11 (c) a decision to defer providing the access to information: (d) a decision relating to imposition of a fee or the amount of the fee; (¢) adecision relating to remission of application prescribed fee: (f) adecision to grant access to information only to a qualified person: or SS (g) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section |3., (2) An application under subsection (1) shall be made within thirty days, or such further period as the County Executive Committee Member may allow, from the day on which the decision is notified to the applicant. (3) The County Executive Committee Member may, review a decision by a county public entity refusing to publish information that it is required to publish under this Act. (4) A person aggrieved by the decision of the County Executive Committee Member may appeal to the Commission on Administrative Justice. Notice to interested persons

15. (1) In reviewing a decision in terms of this Act. the County Executive Committee Member 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. Protection of persons making disclosure

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. (2) For purposes of subsection (1), a disclosure which is made to a law enforcement agency or to an appropriate county public entity shall be deemed to be made in the public interest. (3) A person shall make a disclosure under subsection (1) or (2) where he or she has reasonable belief in the veracity of the information. 88 No. If Embu Access to Information Mis (4) Any person who provides false information maliciously intended to injure the other person Commits an offence and is liable, on conviction, 10 8 ler nol exceeding three vears imprisonment, (5) Disclosure of information under subsection (1) und (2) includes information on— (a) violations of the law, including human rights violations: (b) mismanagement of funds: (c) conflict of interest: (d) corruption; (e) abuse of public office; and (f) Dangers of public health, safety and the environment, (6) For the purpose of this section, a person is penalized if the person is dismissed, discriminated against, made the subject of reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been providedor any other personne! action provided under the law relating to whistle blower, and the imposition of any such penalty in contravention of this section shall be actionable as a tort. (7) Any term of any settlement arising from a claim under this section, insofar as it purports to impose an obligation of confidentiality on any party to the settlement in respect of information which is accurate and which was or was proposed to be disclosed, shall be unenforceable. (8) In any proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information, it shall be a defence to show that— (a) in the circumstances, the disclosure was in the public interest; and (b) Where the offence is alleged to have been committed by a public officer or Government! contractor and involves the disclosure of information obtained by the person in the person’s position as such, the defendant had, before making the disclosure, complied with the provisions of subsection (3). Management of records

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. 89 2015 frmbu Access to Information Ma. it (2) Every county Public entity shall keep and maintain— (a) records that are accurate, authentic, have integrity and are useable: and (b) its records in a manner which facilitates the nght of access to information as provided for in this Act. (3) At a minimum, to qualify to have complied with the duty to keep and maintain records under subsection (2), every county public entity shall— (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; (b) ensure that records in its custody, including those held in electronic form, are maintained in good order and condition; and ee (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. pe Offence of alteration, defacement, blocking, erasure, etc.

18. (1) Where an application to access information has been made to ee a county public entity under section 7 and the applicant would have been entitled, subject to payment of any fee, to provision of any information in accordance with thal section, any person to whom this section applies SR commits an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the county 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, (2) Subsection (1) applies to the county public entity and to any ee person who, is employed by, is an officer of, or is subject to the direction of, the county public entity. (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 two years, or to both. Defamatory matter in information released

19. Where any information provided by a county public entity or private body to an applicant under section 11 was supplied to the county public entity or private body by @ third person, the publication to the 40) No. 11 Emby Access to Information 2015 applicant of any defamatory matter contained in the information shall be privileged unless the publication is shownto have been made with malice, PART V—OVERSIGHT AND ENFORCEMENT Role of Commission of Administrative Justice

20. (1) The Commission on Administrative Justice is granted the powers of oversight and enforcement of this Act, (2) In the performance of its functions under this Act, the Commission shall be guided by the national values and principles of the Constitution. Functions of the Commission

21. (1) The functions of the Commission shall be to— (a) Investigate, on its mitiative or upon complaint made by any person or group of persons. violation of the provisions of this Act, (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; (c) develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data: (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 legislution; (ec) moniter state compliance with international treaty obligations relating to freedom of and right of access to information and protection of personal data; (f) hear and determine complaints and review decisions arising from violations of the right to access to information; (g) promote protection of data as provided for under this Actor the Constitution, and (h) Perform such other functions as the commission may consider necessary for the promotion of access to information and promotion of data protection. 9] 015 Embu Access te Information No dl (2) The Commission shall have all the powers as are provided for under this Act, tts constitutive Act and the Constitution as are necessary for the performance of its fimetions under this Act. Powers of the Commission 22, In the performance of its fimetions under this Act, the commission shall have the power to-- (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. (b) question any person in respect of any subject matter under investigation before the commission; and ta {c) Require any person to disclose any information within such ee a i person's knowledge relevant to any investigation by the commission. (2) 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) arecommendation for the payment of compensation; or (¢) Any other lawful remedy or redress. (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. (4).A person who- (a) fails to attend before the commission in accordance with any summons or order issued under subsection (1) (a); or (b) knowingly gives any false or misleading statement or information to the commission; or (c) causes an obstruction or disturbance in the course of any proceedings before the conmmission, commits an offence and shall. on conviction, be liable to a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding six months or io both. (5) County public entities and relevant private bodies shall provide to the Commission such reports» as required by the relevant national legislation. 92 No. 11 Embu Access to Information 2015 PART Vi—MISCELLANEOUS PROVISIONS Reports by public entities

23. On or before the 30th day of Sime of each year, every county public entity shall submit to the County Executive Committee Member areport covering the preceding year, which shall include- (a) the number of requests for information received by the entity and the numberof requests processed; (b) the number of determinations made by the entity not to comply with the requests for infermation under section 7, and the main grounds for such determinations; {c) the average number of days taken by the entity to process different types of requests: (d) the total amount of fees collected by the county public entity while processing requests; and (e) the number of full-time staffof the county public entity devoted to processing requests for information and the total amount expended by the entity for processing such requests.

24. (1) The County Executive Committee Member may make Regulations, prescribing anything required by this Act to be prescribedor generally for the better carrying out of the provisions of this Act. (2) Without prejudice to the generality of subsection (1) the Regulations may provide for— fa) the manner in which applications under this Act are to be made, (b) the form in which information requested under this Act is to be supplied; | (c) the making of applications for personal information by representatives of the individual to whom the information relates; (d) the measures which county public entities shall take in order to assist personsin exercising their rights under this Act; (e) the measures which county public entities shall take to ensure that adequate records are created and maintained by public entities; (f) the procedures that should be followed by a complainant in the commission to review any decision of a County Public entity relating to access to information; 93 2015 Embu Accexs to Information No. 11 (8) the procedure to be followed by a county public entity in consulting with a third party before giving access to information obtained by it from that party; (h) the procedures requiring a county public entity to ensure that personal information is accurate; (1) compensation to be sought by an individual who has suffered damage as a result of the holding of maccurate information about the individual's personal affairs by a county public Entity, (j) the records that county public entities shall be required to keep; or (k) such matters as are contemplated by or are necessary for giving full effect to this Act and for its due administration. a