Freedom of Information Bill Part 2

October 7, 2014

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September 2014 – ISSUE 19

The Freedom of Information Bill was drafted to do away with secrecy in the public arena. It aims to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely: governmental accountability; transparency and public participation in national decision making. This article is a follow up to my earlier article and will focus on recent events which highlight the need for the act to be implemented and enforced as ever now than before.

The government is under heavy pressure to address the social ills that plague our country. The controversy surrounding the passing of the gaming bill to legalize web shops by cabinet has left the Bahamas own street philosopher Potcake stating that “the P.M. Christie is a (crime) art-tis) him and his (boys) gone back to the drawing board.” (See Tribune dated 9th September, 2014). While I do not condone the statement, one can understand the backdrop to which it was made since an opinion poll was put to Bahamian public and the response was a resounding no; yet the government still when ahead with it’s agenda claiming that the Bill must be passed in the public’s interest in order to save the economy.

Other matters of public interest that we were kept in the dark on include the controversial signing of the Letter of Intent for a $650m waste to energy plant for the New Providence landfill without Cabinet approval on July 4 by a Parliamentary Secretary. It has been 65 days and counting since questions raised by the public without action. Additionally, the referendum to amend the constitution as it relates the conferring citizen has resulted in female parliamentarians calling for a delay as the time has to be extended allotted for the educational campaign. We believe that since there is so much confusion about so many things that the government should be sure that the issues are clear in the minds of the people before passing any law.

An in-depth examination of the Bill reveals that the public has a general right of access to records held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information. By this proviso the public is given the freedom of information on one hand and then on the other hand it’s clothed with exemptions which may prevent disclosure altogether (Section 6).

Some of these exemptions are absolute bars to disclosure; some are qualified, which means the public authority has to decide whether the public interest in disclosing the relevant information outweighs the public interest in maintaining the exemption. An applicant for information who considers that a request has been wrongly rejected may apply to the Information Commissioner, who has the power to order disclosure. However, such orders can be appealed to the Supreme Court for judicial review. Clause 47)

Notwithstanding these restrictions, there are notable features of the Act, namely:

· The definition of “records” and “public authorities” are given wide meanings (Clause 2);

· Requests must be granted unless exemption applies (Clause 6) ;

· Persons applying for records need not give reasons for their requests (Clause 7);

· Public authorities have a duty to respond to all requests within 30 days of receipt (Clause 7);

· The Act binds the Crown – essentially no one is above the law; the Commissioner can uphold the rule of law (Clause 58);

The Bill promotes openness (transparency) by providing for the appointment of “information managers” in public authorities to encourage best practices in record maintenance, archiving and disposal and receive requests for records and complaints regarding the performance of the public authority relating to information disclosure (See Clause 49). The necessary implication of this is that all government employees would be subjected to training on freedom of information.

If a public servant is found to have altered, defaced, blocked, erased, destroyed or concealed the requested record with the intention preventing its disclosure, he or she faces a six month prison sentence and a fine of up to $10,000.00. In essence, whistle blowing is encouraged.

Clause 50 provides:

“No person may be subject to any legal, administrative, or employment related sanction, regardless of any breach of legal or employment-related obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment, as long as he acted in good faith and in reasonable belief that the information was substantially true and disclosed evidence of wrong- doing or serious threat to health, safety or the environment.”

This clause is of significant value than all others combined. It should result in a system where record requests are no longer met with hostility, suspicion or silence. It should also prevent against victimization.

Despite these positive aspects, the legislation has too many “loopholes” that allow authorities to avoid disclosing information in certain situations. In a recent interview a noted parliamentarian observed that “government’s Freedom of Information Bill falls short of a true surrender of control over information to the public.” After reviewing and digesting all its provisions, I concur with that observation. However, despite its short comings, the Bill is a major achievement for The Bahamas. We trust the government of the day will allow the natural progression of this law to come into force.

The clauses of the Bill mentioned in this article are only a summary and is not meant to be construed as legal advice in any way.

Jayson Romer