The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

THE new Freedom of Information (FOI) Bill 2015 removes ministerial veto power over disclosures and sets out guidelines for the appointment of an independent Information Commissioner.

The Bill, released yesterday, also omits sections on the amendment and annotation of personal records and the declaration of adherence to the Official Secrets Act, which were identified as significant challenges to the former legislation.

However, the new legislation appears to have retained much of the former Bill’s structure, instead expanding on sections related to the hiring and authority of the Information Commissioner (IC); exempt records; and public interest, in addition to cosmetic changes.

In the former Bill, any record could be deemed exempt from disclosure by a certification from the Minister responsible for FOI. The decision would not be subject to judicial or quasi-judicial review.

While this was removed, the Minister can still specify by order that a statutory body or authority be exempt from the application of the Act. The Minister also will be able to amend the law’s application, a public authority’s schedule and further extend rights of access.

The IC’s powers to investigate were strengthened considerably, with the ability to refer to a disciplinary authority in cases of egregious or wilful failure to comply with the obligations of the Act. The commissioner may also conduct an investigation into any matter on his own initiative, which would be treated as an appeal.

Rights of access were extended, from only Bahamians and permanent residents, to include a body incorporated or registered under the laws of the Bahamas; a partnership or other unincorporated association registered in the country; or a person that does not apply to the above but maintains an office branch or agency through which he carries on any business activity.

Complainants or a public authority can make an appeal from the IC’s decision to the Supreme Court within 45 days of the decision, with burden of proof on the public authority to prove it acted lawfully. If no appeal is made the commissioner can certify in writing to the court failure to comply with its decision, which the court may consider under contempt of court.

The IC will not jointly hold office as Data Commissioner, as outlined in the former Bill, which did not include any guidelines for the post. The position will have a five-year-term and salary on par with a Supreme Court Justice. The IC will be appointed by the Governor General on advice of the Prime Minister after consultation with the Opposition leader.

An eligible candidate must be fit and proper, appropriately qualified, independent, impartial and accountable. The 2015 Bill further states that the IC must have demonstrable knowledge in access to information transparency, or public and corporate governance; must not have been convicted of a crime involving dishonesty or violence; must not been adjudged or otherwise declared bankrupt under any law; and must not have held any political office or served as an official of a political party.

The IC may be removed by the Governor General for misbehaviour, incapacitation by physical or mental illness, or inability to discharge the functions of his office. Deputy ICs and Assistant ICs also will be appointed by the GG on the recommendation of the IC, with five-year terms.

The Commissioner shall be responsible to Parliament but will not be a public officer under the Public Services Act, and must lay before parliament an annual report of operations, and audited accounts.

Vexatious, repetitive, or unreasonable requests – of which public authorities are not required to comply – are still not defined in the Bill; however, it was added that the IC will publish guidelines in relation to requests under this section.

Costs of access were also not de-limited, with the Bill stating that fees payable by applicants shall be commensurate with the costs incurred in making the record available.