A modified Freedom of Information Bill, has been introduced in the Senate by Attorney-General John Delaney and will be debated there first. The House of Assembly is expected to debate the Bill when it meets later this month.
In addition to typographical corrections, the amendments restrict application rights to Bahamian citizens and permanent residents; and provide for the appointment of an information commissioner, who will also act as data protection commissioner - a post created by another law that was passed in 2003.
The changes also confirm that the Official Secrets Act will still apply "to the grant of official documents in contravention of (the freedom of information) act." Presumably, this means that everything in government is officially top secret, unless the information commissioner says otherwise. And the information commissioner can be overruled by the minister, whose decision is not subject to judicial review.
So far as I am aware, no consultative process ever took place for this Bill. The Tribune never officially received a draft and was never asked for input, so it is fair to assume that no other media group was consulted. However, the Bill is a close copy of the Cayman Islands law - which was years in the making.
The Official Secrets Act is a colonial-era law that makes it an offence for public officers to communicate, retain, or fail to take reasonable care of information received during or after their government service. Offences are punishable by a two-year prison term, a $500 fine, or both.
Perhaps the most interesting amendment is the one that effectively combines two seemingly incompatible posts, presumably as a cost-saving measure.
The data protection commissioner's role is to safeguard the privacy rights of individuals. The office was legislated almost a decade ago to comply with international standards on the processing of personal information by both the private and public sectors, but few Bahamians know it exists.
George Rodgers, a former official in the Bahamas Development Bank, was named data commissioner in 2006, but he has little to keep him occupied. His 2010 report mentions only two relevant complaints, a handful of inquiries, and a number of "awareness visits" to local agencies. Regulations are apparently still under development.
The Data Protection Act gives individuals a right of access to personal information collected by public or private bodies. They also have the right to rectification or erasure of inaccurate data, as well as the right to prohibit the use of their personal data for marketing purposes. Offences under the act are subject to fines of up to $100,000.
Both the data protection commissioner and the information commissioner are supposed to be independent and non-political, appointed by the governor-general on the recommendation of the prime minister after consultation with the leader of the opposition.
The data commissioner's office is likely to be considered inconsequential by most Bahamians. But the appointment of an information commissioner could be an important step towards more transparency and accountability in government.
So there should be some measure of public input in the selection process, which should seek a high-profile, independent-minded individual, who is both interested in the issues and who can withstand political pressure. Are there any candidates out there who fit this bill?
Martelly's Bad Rap
Thinkin' I'm new to this
because I'm younger
where I'll only leave you suspicious and to wonder…
--Sweet Mickey
Sweet Mickey was Haitian President Michel Martelly's stage name as a Compas singer, until he won last year's presidential election with some 60 per cent of the vote.
His inauguration marked the first time a democratically elected Haitian president (Rene Preval, a one-time ally of former president Jean-Bertrande Aristide) handed over power to a freely elected leader from the opposition.
Over the past year Martelly has made official visits to Europe, Cuba, Venezula, Central America and the Caribbean. His most recent regional tour included a two-day stopover in Nassau, where he held talks with government officials on immigration, trade and tourism issues.
“I told them to organize and identify in the upcoming elections who is on their side," Martelly told reporters after the meeting. "That way they can become a force. By being [unified] in the elections they might have people taking care of them… this is the democratic way.”
He pointed out that children born in the Bahamas to foreign parents do not automatically get citizenship. “So until they’re 18 they don’t belong anywhere..This could be considered a crime. Be responsible, be human and see how to better assist these Haitians.”
Martelly's remarks have been decried by some as "insulting" interference in Bahamian politics.
“I thought it was an insult to the Bahamian people that a foreigner would come here and instruct Bahamian citizens to vote one way or the other,” said PLP chairman Bradley Roberts.
DNA leader Bran McCartney said Martelly's remarks were a “direct attack on Bahamian democracy and all Bahamians -- those of foreign descent or otherwise." He suggested that prime minister Ingraham had arranged the visit "for political reasons" and called for his resignation.
Former prime minister Perry Christie has acknowledged in the past that both PLP and FNM governments have been reluctant to take a firm stand against illegal Haitian immigration because they fear the voting power of Haitian-Bahamians.
The PLP backroom propagandists are necessarily conflicted over this issue. On the one hand they want to accuse Ingraham and Martelly of manipulating the Haitian-Bahamian vote against the PLP. On the other, they don't want to imply that it is in the interest of Haitian-Bahamians to vote for the FNM.
On the one hand they want to exploit the fear and loathing many Bahamians have for Haitians. On the other, they don't want to turn off Haitian-Bahamian voters. On the one hand they accept the reality of immigration, and particularly of Haitian immigration. On the other, they have to pander to Bahamian nationalism and xenophobia.
It's a tough call for them.
The bottom line is, there was nothing wrong in substance with what Martelly had to say. But it was clearly wrong, in my view, for Roberts and McCartney to demagogue the issue. American leaders have often made unwelcome political comments during visits to other countries, like China, and I think Martelly had every reason to make those comments here.
To avert a future social explosion, we need to deal with the very real issues posed by Haitian migration intelligently and reasonably.
College of the Bahamas Report
After I was inexplicably unable to obtain a copy of any recent College of the Bahamas annual report to research last week's article on the College's prospective transition to university status, Education Minister Desmond Bannister belatedly provided me with the 2010-2011 edition.
Lest we forget, these reports are required by law to be produced annually, tabled in parliament, and made available to the public in a timely fashion. They account for the disposal of public funds and the stewardship of public officers. But the performance of most government bodies in this regard is mixed at best.
In an apparent nod to current political correctness, the word "university" is not mentioned anywhere in the 2010-11 report, although there are references to the College's mission - which explicitly assumes the development of a University of the Bahamas.
For example, "the College is on target and on course to write the next remarkable chapter in its history with a renewed commitment to its mission," wrote Council Chairman T. Baswell Donaldson in his introduction.
The report puts total revenues for the fiscal year June 2010 to June 2011 at just over $43 million - comprised of a $24.7 million government subvention, $15.8 million in tuition fees, $1.8 million in sales, $450,000 in donations and grants, and $378,000 in other income.
Outgo includes $30 million in salaries and benefits, $5.7 million in operating costs, $$3.5 million in depreciation costs, $768,000 in educational expenses, $1.1 million in cost of sales, and almost $1 million in maintenance costs - producing a surplus of $816,000.
Since 2007, the College has also received $1 million annually from the government for financial aid to some 400 students. And about 2600 students are taking advantage of a deferred payment plan for tuition expenses.
Last May the College graduated 442 students from degree and certificate programmes - 65 per cent receiving bachelor degrees. And there are currently 600 students enrolled at the new Grand Bahama campus, out of a total College enrollment of just over 5,000, almost half of which are full-time.
The College now offers six bachelor degrees in over 60 majors, and two associate degrees. It also facilitates the University of the West Indies law programme and the University of Technology (in Jamaica) bachelor degree in pharmacy.
A master of business degree was launched in 2010 with 18 students, and the College also facilitates Kent State University's master of education degree. Other graduate degree programmes include a master of science in reading, and a master of social work in conjunction with Florida's Barry University.
Here is an excerpt from a recent editorial in the Cayman Compass:
"Cayman has indeed come a long way in just over three years when it comes to government transparency, mainly because of the Freedom of Information Law. At the same time, the government can do better.
However, a pervasive, long-standing culture of secrecy in government can’t be changed in just three years. It will take time before a new generation of civil servants and politicians truly embrace everything espoused by Cayman’s Freedom of Information Law.
Regardless, FOI has been a major victory for transparency here and people only have to know that other jurisdictions are now looking at Cayman’s law as a blueprint for their own Freedom of Information legislation to see how its success is viewed internationally.
Most impressively, FOI is changing the culture in Cayman’s government, where some department heads are embracing the public’s right to know."
Posted by: larry smith | February 15, 2012 at 05:09 PM
quote
The bottom line is, there was nothing wrong in substance with what Martelly had to say.
unquote
I disagree Sir
quote from Martelly
So until they’re 18 they don’t belong anywhere..This could be considered a crime. Be responsible, be human and see how to better assist these Haitians.” unquote
The bahamas is guilty of a crime for not rewarding illegal immigration with citizenship?
How about he and the haitian government are guilty of a crime for not granting citizenship to these children born to their citizens.
He himself calls them haitians in the quote, but his government would rather dump them off on the bahamas then recognize their own people.
PS I nominate xenophobia/xenophobic as the most over-used word in the bahamas. It seems impossible to say anything about the illegal immigration issue with hearing that word.
Posted by: minor | February 15, 2012 at 07:53 PM
Martelly's comments weren't a problem for you because you're an FNM diehard supporter. Once the FNM is in office all is well as far as you're concerned!
Posted by: Sean Rolle | February 15, 2012 at 11:22 PM
@Minor - Actually, as Ingraham noted, "These people are not stateless. They have the citizenship of their parents according to our constitution which is different from those of Haiti and the United States. People born in the Bahamas for non-Bahamians do not have the right to citizenship of the Bahamas until they have attained the age of 18. They must do so before the age of 19 years, otherwise they lose that right."
Xenophobia means an unreasonable fear of strangers. Don't you think it's unreasonable for Bahamians to employ Haitians while ceaselessly loathing their presence? There are serious issues that have to be faced and addressed - one being the assimilation of Haitian migrants into Bahamian culture. Otherwise, we are looking at a ticking time bomb.
Posted by: larry smith | February 16, 2012 at 07:26 AM
@Sean -What kind of critique is that? Do you actually read my articles?
Posted by: larry smith | February 16, 2012 at 07:28 AM
The new provision (clause 55 (4)) in the revised FOI Bill 2012 that was passed by the Senate, which essentially declares that the "grant of access to official documents" under the Official Secrets Act will apply in contravention of the FOI Bill, seems curious to say the least.
First, there is no definition in either the Official Secrets Act or the FOI Bill as to what constitutes "official documents", so I assume it refers to non-public government information.
Second, in essence the new clause 55 (4) means that the status quo will remain, even after the FOI Bill is passed into law, as regards disclosure of government information subject to the Official Secrets Act.
This naturally begs the question as to what will be the purpose of the FOI Bill if the status quo is to be preserved?
Under the Official Secrets Act a public servant subject to the Official Secrets Act can only release confidential government information to a person to whom he is authorised to release it or to a person to whom it is in the interest of the State to have such information. The issue of authorisation in these circumstances is clearly a matter for the ministry or department in which the public servant works.
Obviously, some reconciliation of the competing provisions under the Official Secrets Act and the proposed FOI Bill did not take place, because the FOI Bill 2012 effectively removes information covered by the Official Secrets Act from the ambit of the FOI Bill altogether.
This rather strange approach can be contrasted with the Irish Freedom of Information Act which clearly states that access granted under the FOI will satisfy the requirements for authorisation under the Official Secrets Act.
When the provision exempting information subject to the Official Secrets Act is taken together with all the possible avenues for the government (through ministers, permanent secretaries, heads of other public authorities and sundry Information managers) to prohibit access to information (under the various exemptions), it certainly does not appear that much will change when the FOI Bill 2012 becomes law.
The Bill should have been the subject of wide consultation (inclusive of those civil servants that will be charged with its implementation) and a white paper. A public access to government information law is an enormously important step for any country and one that, if not planned properly, will fall short of its intended purpose.
Finally, the whistleblwer provisions copied directly from the Cayman law, are, to my mind, not worth the paper they are written on. This holds true for the Cayman provision as well, if there is no supporting framework that expands upon and outlines the procedures for how whistleblowers will, in fact and practice, be protected.
The current provision does nothing more than declare that no retaliatory action should be taken against a whistleblower. Nor does it provide any indication of what will happen to persons who do take retaliatory action against a bona fide whistleblower.
In any event, it is also a curious step to include such a provision in a law dealing with providing access to the public to government information. It would seem more appropriate to include whistleblowing provisions under its own separate law, and also include such provisions in employment laws.
The FOI Bill requires far more scrutiny and adjustments to be workable in the Bahamian context.
Posted by: Rowena Bethel | March 02, 2012 at 12:13 PM
Thanks for your insight, Rowena.
You would think that the media would be leading the fight for this important legislation, yet all they do is publish notices of its progress.
It is most unfortunate that this law was not taken more seriously by everyone involved. It will very likely end up as a wasted opportunity, as you say.
Posted by: larry smith | March 02, 2012 at 12:48 PM