Freedom of Information – An important deterrent against abuse

By Murli Dhar

Over the past month, we have had a government which has split. We are being gratified since then with a volley of mutual insults and accusations by the two sides which have parted company. Potential scandals have surfaced up, which would have been kept under the carpet had the government not split. Newer chapters with more ministers being called to depone are adding on to the investigation, making its outcome even more prolonged than the past eight months since December last when the deal was done. Yet, the issue in the case is not difficult. A private hospital has been purchased late last year by the government with the intent to make of it a national geriatric hospital. After an initial valuation of the property at Rs 75 million by the Government Valuer, a second valuation was undertaken barely weeks later resulting in a higher valuation at Rs 125 million. Besides, equipment lying at the private hospital was also purchased for an additional sum of Rs 19.7 million when the real written down book value of this equipment would have been far less. This equipment might not have been the subject of a separate tender procedure and it would have served rather the convenience of the hospital’s previous owner to dispose of it at the same stroke. On the basis of the second valuation, the total transaction value of Rs 144.7 million was arrived at, being the price at which the whole thing was purchased.

The Leader of the Opposition questioned the transaction, particularly with respect to the reason behind the second valuation the effect of which was to swell up disproportionately the acquisition price for the government. A second valuation of a specific property is not normally carried out over such a short period of time. If it was decided nevertheless that a second valuation should be conducted, the reason/motivation(s) for this should have been put down in the appropriate file stating the objective reason for repeating the exercise or repudiating the first valuation.

The file should also contain precise information as to whether the second valuation was contested in the concerned ministry(ies) in view of the apparent contradiction between the first and second valuations as well as the added cost thereof to the taxpaying public. There should have been annotations made as to why a second valuation had become necessary and been resorted to in consequence in this precise case.

It should have been the normal practice in all such cases generally for departures from pre-established norms to be duly documented, pencilled out in files in a manner as to make them tamper-proof. In such a case, investigators would not have to go by the words of the officers after the event; they would only have to consult the files in order to identify whether rules have been strictly followed or whether there has taken place an act of corruption. Moreover if investigators had been denied access to the files for some official reason, they could have asked a judge in court to order the concerned persons to release the information to them for the purposes of the investigation.

That the investigation in the MedPoint case is dragging on for such a long time shows that reasonably expected information may not have been available to the investigators from the records. ICAC therefore has to depend on what different individuals who are involved in the case have to say, to overcome the shortcomings of objective recorded evidence. This is a weak route for an investigation to take in a public purchase transaction. It is not always certain in such cases whether the investigation will manage to gather sufficient corroborative evidence cast in stone to actually successfully indict one or more persons for acting contrary to law.

This situation shows that there is undeniably an excessive cost to obtaining information when this is obtained through indirect routes rather than from objective records. This should not have been the case for government departments and public bodies in particular. The latter may be taxed for being bureaucratic at times but there would have nevertheless have been a lot of merits keeping to a duty to keep a clear written-down trail with respect to important decisions taken. If it is not so in general in the public service, this may mean that there are insufficient rules to capture sensitive information in the public sector decision-making process or that the rules have been deliberately flouted with ulterior motives. It is an image we cannot afford to project.

For long, it has been suspected that ministers or top bosses in the public sector giving orders for action to be taken do actually take care not to record embarrassing facts. Verbal instructions are preferred in such cases. Where public servants act on such verbal instructions, they do so at their own risk and peril. The lessons leant from the current MedPoint case should awaken them to the dangers of acting outside an established order just to please so-and-so who are usually not available to give support when investigators or auditors close in on actions taken contrary to establishment rules.

Sometime back, the Bel Air Sugar Estate IRS affair came to the forefront on a suspected case of bribe taking. The court found this week that ICAC had presented before it an offence for trial whereas the offence did not exist in its law at the material point in time when the act was allegedly committed. It would therefore appear that this highly publicized case at one time will fall between two stools. The land that was identified in this case for building the IRS was eventually allocated to someone else but the public in general did not know about its existence or its availability for development until the matter became a high profile case of potential corruption. The absence of public information on sensitive public matters and decision-taking is giving cause for serious concern.

Yet another case has come up this week concerning a property belonging to the public sector owned Rose Belle Sugar Estate; the latter sold off the property at a lower price (Rs 36 million) than the one at which the Government Valuer had allegedly set its estimated price at (Rs 50 million) whereas the converse took place in the MedPoint affair in which the property was bought up by the government at a price way up from the originally estimated price by the Government Valuer. The latter’s valuation figure is thus not sacrosanct to all intents and purposes.

This kind of aberration has been going on most probably because of arbitrary discretion exerted by certain persons who are in a position to take or influence decisions. In both the cases, there is one common factor: it is the public who are the losers. The absence of transparency could not have been more evident and this is a practice that successive governments have been bequeathing each other for a long enough time without redressing the situation. We have been promised a Freedom of Information Act since a long time now which could have acted as an important deterrent against abuse. It is taking a lot of time to come. In its absence, however, we would expect the basic principles of good governance to prevail so that all key decisions and the reasons therefor are duly recorded by all concerned. This will help the country not to get distracted into prolonged cases of abuse of authority without being able to pin down at once the one(s) who has(ve) acted beyond the permitted brief to the detriment of the public.

* Published in print edition on 1 September 2011