Court throws out MFWA case against NCA, orders them to pay GHS2000 request fee

    7

    An application brought by the Media Foundation for West Africa (MFWA) that sought to question the legality of a request by the National Communication Authority (NCA) which enjoined the MFWA to pay GHS2000, to get access to some information requested has been dismissed by the Human Rights High Court in Accra.

    The Court presided over by Justice Gifty Adjei Addo has thus charged the MFWA to pay the required amounts tabled by the NCA, before it can be provided with the information requested.

    Background

    On 27th November 2020, the MFWA dragged the NCA to court after the state regulator sent a letter asking the media foundation to pay GHS2,000 before they could be furnished with the details they sought.

    Earlier in July 2020, the Executive Director of the MFWA, Sulemana Braimah presented a request to the NCA, “in the exercise of rights the claim was guaranteed under Article 21(1)(f) of Ghana’s Constitution, and the Right to Information Act, 2019 (Act 989).”

    In the request, the MFWA prayed the NCA to deliver the complete list of all FM radio stations that it had shut down, in the aftermath of the regulator’s 2017 FM spectrum audit. The NCA had noted that the audit was consistent with the decision of the Electronic Communications Tribunal. The MFWA indicated that the list should contain the name of the company, name of the radio station, location, and frequency number.

    In addition, the MFWA requested a separate list of all FM stations that had been authorized as of the second quarter of 2020. The list also had to be presented with the dates of first authorization, dates of last authorization renewals, locations, and operational status.

    Again, the NCA was petitioned to submit its reasonings on why it had enacted changes that excluded certain information from the 2020 second-quarter report titled: “List of Authorized VHF-FM Radio Stations in Ghana as at Second Quarter 2020.”

    The NCA acknowledged receipt of the MFWA’s request but refused to submit the information that had been requested. After receiving a follow-up letter on 18th August 2020, the NCA sent two letters in response. In the first letter, the NCA noted that it was not going to provide any such responses on the changes it had made to its report. The second letter requested the MFWA to pay GHS2000 to enable the NCA to generate the information it requested. According to the NCA, this was consistent with the Electronic Communications Act.

    Reliefs sought

    The MFWA consequently dragged the NCA to court, where it sought;

    1. A declaration that the decision and demand by Respondent contained in its letters dated 29th July 2020 and 20th August 2020 complained about is 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.

    Ruling

    After hearing the arguments from both ends, the High Court has ruled that the request by the MFWA for the NCA to provide justifications for the identified changes was untenable. Subsequently, the court ruled that it could not find proof of public interest undergirding the requests by the MFWA.

    The MFWA has thus been directed to pay the fees charged by the NCA, although the court varied the amount from GHS2000 to GHS1500.