The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

DATA protection legislation must be updated if the newly released draft Freedom of Information Bill is implemented in its current form, according to acting Data Commissioner Sharmie Farrington-Austin.

Mrs Farrington-Austin explained that the decision to split the two regimes created a higher risk for conflict, and as such, both offices should be given the same degree of independence and resources.

She pointed out that it may be difficult to justify the cost of two commissions in such a small jurisdiction.

Mrs Farrington-Austin also expressed concern that the staff of the information commissioner would be appointed on the advice of the Public Service Commission – a move she termed as “egregious” and not consistent with best practice.

“It should be noted that both the access to information and privacy are equal fundamental rights,” she said, “neither law should arbitrarily trump the other.

“The primary benefit of having two regimes is that each of the two can create clear champions for such rights. However, the primary concern of having two bodies, is that there will be conflict between the two, and that could become messy, expensive and embarrassing.”

Mrs Farrington-Austin added: “There is also the concern that public bodies and the public will receive conflicting advice from the two commissioners when they disagree.”

She pointed to legal cases that have called for a conflict-resolution mechanism when there are two separate regimes. In Slovenia, the two-regime system was found to be inefficient and was merged into one. In New Zealand, she explained, the Privacy Commission and the Ombudsman have a formal consultative process over the release of personal information; and the two bodies are also required to co-operate in Ireland.

Countries such as the United Kingdom, Hungary, Thailand, many Canadian Provinces, Germany, Mexican states, and Swiss cantons at the subnational level have all adopted a one-regime approach, she said.

“In the region, where there are Freedom of Information and draft proposed Data Protection Laws, like Trinidad and Tobago, and the Cayman Islands, there is one merged regime,” she said. “This allows better balancing and greater operational efficiency.”

Mrs Farrington-Austin added: “The most significant benefit of having a single body is the shared expertise and reduction of conflict. There is a strong interrelation between the two rights. Although they have some areas of conflict, they have some areas of commonality.”

Her observations follow the release of the draft Freedom of Information Bill on Monday.

She applauded the government and the Bahamian people for moving one step closer to “removing the unnecessary secrecy surrounding government information”.

“It is a decision for the policy makers to decide which regime approach is better for The Bahamas,” Mrs Farrington-Austin said.

“If that decision (means) two regimes, then I strongly urge the government to amend The Data Protection Privacy of Personal Information Act simultaneously to avoid creating an imbalance in the information regime in The Bahamas.”

Pointing to scores of tax agreements signed with European nations for information exchange, Mrs Farrington-Austin underscored an urgent need for clauses related to immunity and staff confidentiality to be copied from the FOI Bill and applied to the Data Protection Act to reflect international standards and parity.

Noting the assistance provided by her office to the FOI Committee, she added that her office also recommended the appointment of a representative from the College of The Bahamas.