The Right to Information Commission (RTIC) has directed the External Affairs Ministry to release a $ 54.8 million loan agreement between the Government of Sri Lanka and the China Development Bank (CDB), ruling that the public interest in disclosure outweighs claims of confidentiality linked to the debt restructuring process.
In a decision dated 28 January, the Commission ordered the release of the loan agreement relating to the Katana Water Supply Project, signed on 21 August 2017 between the CDB and the National Water Supply and Drainage Board, on or before 27 February.
The decision followed appeals by researchers and journalists seeking disclosure of nine loan agreements entered into with Chinese lenders for infrastructure and community projects. While the Government released eight of the requested agreements during the appeal process, the Katana Water Supply Project loan remained undisclosed on the grounds that its restructuring had not yet become effective and was subject to regulatory clearances, including approval by the Attorney General’s Department.
The public authority argued that premature disclosure could prejudice Sri Lanka’s relations with foreign States, undermine sensitive debt restructuring negotiations, and cause economic harm, relying on exemptions under Sections 5(1)(b)(ii), 5(1)(i), and later 5(1)(c) of the RTI Act, No. 12 of 2016.
However, the Commission found that the procedures required under Section 29 of the Act, which governs third-party confidential information, had not been followed. It noted that correspondence cited by the public authority as evidence of lender refusal to consent to disclosure predated the information request and therefore could not be relied upon.
The RTIC further observed that the confidentiality clause in the Katana loan agreement expressly permitted disclosure where required by law. It held that the public authority had failed to discharge its burden of proof under Section 5(4) of the Act to demonstrate that the harm from disclosure outweighed the public interest.
In assessing public interest, the Commission emphasised that the debt restructuring process itself had become necessary due to failures in financial accountability and transparency. It noted that the agreement related to the supply of water, described as an essential commodity, and linked the right to information under Article 14A of the Constitution to the right to life, drawing on judicial precedent.
The Commission also rejected the argument that disclosure would undermine comparability of treatment among creditors, noting that only one agreement remained undisclosed and that no evidence had been presented to show current third-party refusal to release the information.
Accordingly, the RTIC reversed the refusal of the designated officer and directed that the agreement be released by the stipulated deadline. It warned that failure to comply would result in prosecution of the Information Officer and the public authority under Section 39 of the RTI Act.
The appeal was formally concluded with the Commission noting that no fee may be charged for the release of information pursuant to its decision.