The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

BALANCING the competing rights to privacy under the Data Protection Act presents a considerable challenge to Freedom of Information legislation, according to Data Protection Commissioner Sharmie Farrington-Austin.

Mrs Farrington-Austin outlined major concerns surrounding the two bills in a recent interview with The Tribune as policy makers prepare to release a draft of the FOI bill for public consultation.

She pointed out that another concern was that there was an overlapping of the right to access and rectification in both pieces of legislation, and added that policy-makers were making every effort to resolve issues through the creation of a special committee.

“A major concern was the provisions dealing with personal information,” Mrs Farrington-Austin said.

“The concern is to ensure that the data protection principles concerning an individual’s personal information is maintained. It is suggested that the UK’s approach in dealing with personal information is adopted.

She added: “The UK is a jurisdiction where similarly data protection laws were enacted and enforced first and then the Freedom of Information Act was later enacted and enforced.”

While the balancing act was not an insurmountable challenge, Mrs Farrington-Austin said there had to be careful consideration of the two competing rights.

“It is my considered view that when a request is made under the Freedom of Information Act, you will need to carefully balance the case for transparency and openness under the FOIA and the data subject’s right to privacy under the Data Protection Act.

“The Data Protection Act exists to protect people’s right to privacy and the Freedom of Information Act is about getting rid of the unnecessary secrecy. These two aims are not necessarily incompatible, but there can be tension between them, and applying them sometimes requires careful judgment.”

The Bahamas’ data protection legislation was passed in 2003 and enforced in 2007, and at the time, there was no Freedom of Information Act. The Freedom of Information Bill was passed in 2012 but was never enforced and came under heavy scrutiny.

The 2012 bill was based largely on the Cayman Islands Freedom of Information Law 2007.

In an interview with The Tribune, Cayman Islands Acting Information Commissioner Jan Liebaers acknowledged that the bill dealt with a number of issues relating to personal information, some of which were typically found in a data protection law.

“(Issues) such as an individual’s right to seek an amendment or annotation of their personal information, as well as, of course, questions of access to personal information and third party rights and procedures,” Mr Liebaers said.

“This means that there is likely quite an overlap with the existing DP legislation, which will of course need to be sorted out before the FOI Law can move forward.”

Mr Liebaers said that it would not take a long period of time to resolve issues, and estimated a six-month timeline; however, he noted that all conflicts would have to be carefully considered given the “absolute need” to ensure a smooth synchronization between the two laws.

In terms of implementation, Mr Liebaers said the Cayman Islands’ drafting of the bill took just over a year. Drafting started late in 2005 and had a public consultation, and was finalised for passing by the Legislature in mid-2007, according to Ms Liebaers, who was a member of the drafting committee as well as the implementation planning committee and steering committee.

“From that time on, government was given 18 months to get ready,” he said.

“The Information Commissioner’s Office itself was not set up until after the law had come into effect in January 2009, which was a mistake since there is quite a bit of work to be done to set up the procedures of that office as well.”

In Parliament on Wednesday, Minister of Education Jerome Fitzgerald, the minister responsible for the legislation, announced that the revised bill would be released for public consultation this week. Last year, he forecast that a revised version of the FOIA would not be presented to Parliament before Spring 2016.

Last month, international expert Toby Mendel charged that any process to revamp the legislation should take less than a year, adding that the delays were “inexcusable”. Mr Mendel, a FOI advocate and human rights lawyer said that there was “simply no reason” for the government to stall the process given that they already had a draft document.

On the matter of overlapping rights to access, Mrs Farrington-Austin again pointed to the UK model.

“In the UK,” she said, “the request for personal information by the data subject for their own information is dealt with under the Data Protection Legislation, whereas, the request for personal information regarding someone else’s personal data is dealt with under the Freedom of Information Legislation.”

Mrs Farrington-Austin said the department was making every effort to familiarize itself with the implementation and enforcement of the FOIA legislation. To this end, she represented the government for the first time at the International Freedom of Information Commissioner’s Meeting held in Santiago, Chile last month.

She added that the department was also exposing its staff to online courses with respect to Data Protection and Freedom of Information, and prepares to do an exchange with the Information Commissioner’s Office to observe their operations.