The Human Rights High Court presided over by Justice Gifty Adjei Addo has dismissed an application brought before it by the Media Foundation for West Africa (MFWA), challenging the constitutionality of a request by the National Communication Authority (NCA) asking the MFWA to pay GHC2,000.00 to enable it generate information they requested.
MFWA filed a suit at High Court on 27 November 2020 against Ghana’s media frequency regulator, National Communications Authority (NCA) after they received a letter from the latter asking them to pay for information they were seeking.
Facts of the dispute
The MFWA, on 22 July 2020, through its Executive Director, Sulemana Braimah, submitted an access to information request to the NCA, in exercise of rights the claim was guaranteed under Article 21(1)(f) of Ghana’s 1992 Constitution and under Ghana’s Right to Information Act, 2019 (Act 989).
The MFWA had requested from the NCA the full list of all FM radio stations (indicating name of company, name of radio station, location, and frequency number) that it had shut down following the Authority’s 2017 FM spectrum audit which, according to the NCA, was in line with the 2018 decision of the Electronic Communications Tribunal.
The MFWA had also requested for the full list of all authorized FM stations as of the second quarter of 2020, with indications of the dates of first authorization, dates of last authorization renewals, locations, and operational status of the radio stations – that is whether they are on air or off-air.
The MFWA further wanted to know reasons why the NCA made changes to exclude certain information from its published 2020 second-quarter report titled: “List of Authorized VHF-FM Radio Stations in Ghana as at Second Quarter 2020,” compared with other similar reports previously issued by the Authority.
After acknowledging the MFWA’s letter, the NCA did not provide the requested information within the statutory 14 days, prompting the former to send a follow-up letter on August 18, 2020.
Subsequently, the media regulator wrote two letters in reply. In the first letter, it indicated that the Authority was not going to provide explanations for the changes it had made to its report. In the second letter, the regulator asked the MFWA to pay GHC 2,000.00 to enable it generate the requested information. It said it based its action on its law, the Electronic Communications Act.
Reliefs sought
Displeased with the amount the NCA was demanding, the MFWA decided to file a suit. The MFWA averred in the suit that the NCA had acted “unconscionably, unjustifiably, unreasonably, unfairly and arbitrarily and in breach of specific provisions of Act 989 complained about in the suit”. Consequently, the MFWA in their suit prayed the Court for the following reliefs;
1. A declaration that the decision and demand by Respondent contained in its letters dated 29th July 2020 and 20th August, 2020 complained about are unlawful, unreasonable, unfair, and in violation of Applicant’s constitutional and fundamental right to access information.
2. A declaration that the amount of GHC 2,000 demanded by Respondent from the Applicant in order to generate the information constitutes constructive denial, refusal, failure or neglect, and breach of Applicant’s right to information under Article 21(1) (f) of the 1992 Constitution of Ghana
3. A declaration that the amount demanded is not only unlawful but unconscionably exorbitant in breach of the letter and spirit of Act 989 and Applicant’s fundamental rights to information
4. A declaration that the information requested by the Applicant is not subjected to a charge/fee; or in the alternative,
5. A declaration that if Applicant were liable to a charge/fee, same ought to be an ascertainable amount to cover the actual cost of reproduction or photocopy of the information sought only.
By court
Justice Gifty Adjei Addo’s Court in its ruling today the 17th of June 2021, indicated that MFWA’s request for NCA to provide explanation for changes in its reporting format was untenable. The Court further held that there was no public interest proof in support of the request by MFWA directed at the NCA but rather, the request was to serve the personal interest of MFWA.
To this end, the request for MFWA to pay for the service was constitutional and did not constitute a breach of their fundamental human rights. The Court however varied the amount proposed by the NCA to MFWA from GHc 2,000.00 to GHc1,500.00.
Wilberforce Asare
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