The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

Three months shy of the third anniversary of Prime Minister Perry Christie’s August 2012 pledge to enforce the Freedom of Information (FOI) Act within his term, it was announced last week that the revised bill would be released for public consultation.

After it had been forecast that legislation would not be ready for parliament before Spring 2016, it was a pleasant surprise to hear Minister of Education, Science and Technology Jerome Fitzgerald announce to the lower House that the bill was ready for external critique.

On Wednesday, Mr Fitzgerald’s announcement was overshadowed by reports that a Tunisian Islamist group had hacked two government websites. The attack was from an activist group called “Fallaga Team” and follows a similar incident from which the St Vincent and the Grenadines is still recovering. The government’s website there was hacked by a group that claimed affiliation with radical Islamist group ISIS, and appears to be still offline.

The US government has confirmed that it is assisting Bahamian officials in this matter; however, it would be interesting to note whether the National Intelligence Agency had any role in the discovery or investigation. And whether the new FOI bill will allow for any inquiry into that secret body that does not yet have any legislative jurisdiction.

The former FOI bill was passed by the Free National Movement administration months before its defeat at the polls. It had an implementation date of July 1, 2012 - but was pronounced glaringly deficient, both at home and by international experts. Although the official Opposition continues to clamour for full disclosure, the bill they attempted to enforce would have upheld the status quo - where information requests are subject to the ultimate whim of political discretion.

Embracing our colonial trappings, the Official Secrets Act, it gave the Information Commissioner a short leash and subsequently placed that leash in the hand of the relevant minister, who would be able to refuse applications without judicial review. It also narrowed the scope of applicants to citizens and permanent residents, something that is hopefully revised given our determination to create a new immigration status of Belongers.

Although the bill was modelled strongly on the Cayman Islands, who passed its law in 2007 and enacted it in 2009, many believe it was never intended to move from paper to practice.

The Cayman Islands government receives around 600 requests per year, according to the country’s Acting Information Commissioner Jan Liebaers, who said that over the last few years there have been 160 appeals and 45 formal hearing decisions.

With requests totalling more than 4,000 to date, the tiny country has one of the highest usage of FOI in the world per capita. “We have a central tracking system,” he said, “that all information managers must use to enter data on requests, which allows reasonably accurate statistics.

“The high number of requests is both good and bad. It is good because people seem to know about their rights under the Law and use it, but also bad because it indicates that the government is not making enough information available on a proactive basis, as is implied if a government is to be open and transparent.

“The Information Commissioner has binding order power, which means that ignoring a decision is not an option, either resulting in contempt of court proceedings, or a judicial review in the Grand Court. To date only two decisions have been challenged in the courts, both in the same case involving records of the Governor (appointed by the United Kingdom). Otherwise we have had compliance with formal decisions of the Information Commissioner in all cases.”

Within the 18 months to implementation, the Cayman government hired an experienced FOI co-ordinator, initiated the appointment and training of Information Managers (IMs) in each public authority and engaged in awareness raising activities through presentations to senior managers. The IMs for the most part existing positions that were assigned the additional role.

“There are a few full-time IMs in the Cayman Islands Government,” Mr Liebaers said, “namely in those departments that receive a lot of requests, eg Immigration Department, Health Services Authority and the like. But mostly, IMs are existing public officers, who in some cases are also responsible for Records Management.”

Mr Liebaers noted that the Information Commissioner’s Office itself, which was not set up until after the Law had come into effect in January 2009, could have been established sooner.

“In the Cayman Islands we took the position that the implementation itself should set an example in openness,” he said, “and all decisions, minutes, etc were opened to the public on an ongoing basis so as to avoid any allegations that we were conducting a secret process to make government more open, and I would encourage the authorities in the Bahamas to take a similar stance.”

Mr Liebaers was a member of the FOI drafting committee, as well as the implementation planning committee and steering committee.

When asked whether or not the law had ushered in a cultural change to governance, he described the measure of success as a glass “half full or half empty”.

“Certainly there has been a lot of emphasis on government accountability and transparency,” he said, “less so on public participation in decision making which is also listed as an objective of the Cayman Islands FOI Law. The much heralded “culture change” within the Public Sector has to some degree materialised.

“I guess it is a question of whether the glass is half full or half empty whether you call that a success or not. Certainly there is still resistance from some public officers or authorities, and particularly some statutory boards are sometimes problematic. However, there is a very high level of awareness of the law in the country, and many civil servants support it wholeheartedly.”

As defined by the Cayman’s law, Freedom of Information is based on the principle that the Government is accountable to the general public, and should justify when information is withheld from the public.

“The FOI Law takes away the discretion of Government to determine what information, if any, they choose to provide to the public.

It adds: “The Law seeks to strike a balance between the public’s general right to know and the need for Government to withhold some information for legitimate reasons defined in the Law.”

Information demands must go further than bloodthirst for political scandal, which have been rife in successive governments without FOI.

As we begin to dissect the government’s revision, it is with a hope that the bill breathes new life into our decaying social infrastructure. For this bill to work, we must commit to not just the digitisation of records but to effective record-keeping, and a balance of power between the citizenry and the public official. Political machines from time immemorial have all chewed desperately at the ever-elusive pledge of effective, transparent and accountable governance. A robust Freedom of Information law will prove to be its teeth.

• What do you think? Email aturnquest@tribunemedia.net