by Larry Smith
Last October the government tabled an historic Freedom of Information Bill in Parliament - fulfilling a key election pledge. This law is expected to be debated this month.
Some have called the proposed legislation weak, arguing that it defers too much power to Cabinet and includes too many exemptions. Others say it is a big step towards more openness, but success will depend on how robust the implementation process is.
The Bill is an almost verbatim copy of the Freedom of Information Act passed by the Cayman Islands legislature in 2007. That law was formulated over a period of years by a Cabinet Office working group which looked at similar legislation enacted by Britain, Canada and other West Indian islands.
The Cayman government created a 16-member steering committee after the law was passed to guide the project to completion. And a separate implementation committee was also appointed, headed by a Jamaican civil rights lawyer, which was responsible for training, awareness and procedures.
“I think it’s a really good piece of legislation and it seems to be working well,” Belinda Crowe told the Caymanian Compass newspaper recently. Crowe is a former official in the British Ministry of Justice, who is currently advising the government of Guernsey on its information strategy.
"Getting the balance right is challenging," she wrote recently. "A key benefit of transparency is shining a spotlight into the workings of government, but openness should not adversely inhibit debate or the maintenance of proper records. Excellent information practices can be transformational, but they are not achieved overnight. Nor are they achieved without effort, rigorous oversight and resources."
During a visit to Grand Cayman last November, Tough Call met with the Information Commissioner, Jennifer Dilbert, and her deputy, Jan Liebaers for a direct perspective on how the Caymanian law was working in practice. Dilbert was formerly the Cayman government representative in London, while Liebaers is a former deputy director of the National Archive.
From their second floor office in Elizabethan Square, a short stroll from George Town's spic and span cruise terminal (which is about to undergo a multi-million-dollar Chinese makeover), Dilbert and Liebaers have shepherded about 1800 freedom of information requests since 2009, half of which were granted in full or in part.
According to Liebaers, public reaction to the work of the Information Commissioner's Office has been positive. "Together with the complaints commissioner (ombudsman) and the auditor-general we provide an enormously important counterbalance to the inertia of government," he told me.
As the Caymanian Compass wrote, "More information is now available to the public about the operation and responsibilities of government agencies than has ever been available in the past."
In fact, since the advent of the FOI law, many public boards and commissions in the Cayman Islands have made it standard practice to publish meeting minutes on their websites - something that is unheard of in the Bahamas, where many public bodies often fail to produce statutory annual reports.
The Caymanian law was a campaign promise by the former Peoples Progressive Movement government led by Kurt Tibbets, although the then opposition United Democratic Party voted for it too. But after the UDP won the 2009 election, Premier Mckeeva Bush has at times appeared less than happy with it.
At a press conference in 2010, for example, Bush lashed out at some in the media and the FOI law in general, threatening to impose a six-figure licence fee on media outlets. The outburst was sparked by a freedom of information request for his travel records.
"The FOI law, while purporting to ensure transparency and accountability, costs the country a lot," Bush complained, "especially as it ties up civil servants who are required to respond to requests which can literally come from Mickey Mouse (a reference to the fact that applications can be made anonymously)."
The Information Commissioner's annual budget is a little more than $600,000. As of last November, the office had processed 65 appeals to requests for information that were denied by public bodies. Fifteen of these went to a formal hearing, of which seven were decided in favour of the public authority and seven in favour of the applicant, with one case withdrawn.
These decisions have not yet led to a judicial review, but Liebaers told me the Cabinet almost took one FOI case to court in 2010. That decision involved a request for the transcripts of meetings between Caymanian and British representatives who were discussing constitutional changes.
The changes (which took effect in 2009) created an office of premier for the first time, and devolved more power from the British governor to a reorganized Cabinet. A bill of rights was also drafted, to take effect this year.
"The Cabinet refused to release the meeting transcripts on the basis that they were exempt because disclosure would harm international relations. But the UK government had no objection at all and they were released," Liebaers told me.
"Often," he explained, "it's not what's contained in records that make them the subject of requests, but the fact that they are being withheld in the first place, which makes people suspicious. Many civil servants have an instinctive desire to keep things closed."
For example, the Cayman government's recent cancellation of an agreement with GLF Construction of Miami to expand George Town's cruise port, in favour of a new contract with China Harbour Engineering, has spawned numerous conspiracy theories and generated a lot of newspaper copy.
Grand Cayman has no real harbour, so cruise ships anchor offshore and ferry passengers to town - the way it used to be done here. The Chinese will build new berths for the largest liners, and then operate the port for 49 years, but during my visit the Information Commissioner was reviewing the Port Authority's refusal to release documents on the controversial contract switch.
This is an example of the kind of juicy 'right to know' issues we could expect in the Bahamas, once our Freedom of Information law is implemented in July.
"We are not WikiLeaks," Liebaers said. "Everything has to be balanced, but the government needs to be held accountable. All of us believe in what we are doing, and making the law effective depends a lot on our office."
In Cayman, FOI requests can be e-mailed or hand-delivered to the relevant public body, and pseudonyms can be used to protect an applicant's identity. Requests must be acknowledged within 10 days and a decision communicated within 30 days. If no response is received, or if the applicant is unhappy with the response, the matter can be referred to the Information Commissioner.
"When an appeal reaches our office we first try to mediate with the relevant public authority, which is less labour intensive," Liebaers said. "Of the 65 appeals so far, some 19 have gone to full hearings and in about half of those cases we ordered the release of the records and it has gone very smoothly."
The Bahamas legislation - like the Caymanian law - gives a general right of access to all persons, stipulates a public interest test for most exemptions, and establishes the post of information commissioner for enforcement. The commissioner will be appointed to a five-year term by the governor-general in an "open process" and be responsible to parliament.
The bill also protects whistleblowers who publish information on illicit activities, but will not apply to the judiciary, the uniformed services or financial supervision agencies "in respect of their strategic or operational intelligence gathering."
Records will be exempt from disclosure if the disclosure would harm foreign relations or reveal other confidential information of Cabinet; trade secrets, and in other specified circumstances
This groundbreaking legislation for the Bahamas comes 30 years after Australia passed its FOI Act, 17 years after Belize, 10 years after Trinidad, eight years after Jamaica, six years after the United Kingdom, and three years after the Cayman Islands.
Once passed, the legislation will be brought into effect by the middle of this year, binding any future government. So we are late again, but potentially a big step closer to delivering more openness and accountability in public affairs.
The keys to making this law work will be the choice of information commissioner, the depth of the commissioner's implementation plan, the training of public officers to support the law's provisions, as well as how savvy the media will be in taking advantage of the law's provisions.
Excellent, as usual, Larry. And if the bill is passed before the end of this administration, the FNM will bear responsibility once again for deepening the nation's democracy. But is any government prepared for the consequences?
Question, though -- what is being done with General Orders in light of this Act? Or are we, as usual, passing legislation in a vacuum, without concern for the whole web of arenas that must be affected?
Posted by: Nicolette Bethel | February 01, 2012 at 01:09 PM
Good question.
Here's some expert criticism of our Bill from someone who has had experience with FOI laws in other countries.
"It has some good aspects generally, but there are some gaping holes. Given the weaknesses, it would take real political commitment to make this work.
On the positive side, it gives a general right of access, has a public interest test for most exemptions, and creates an information commissioner for enforcement. The whistleblower provisions are also good if they are enforced.
On the negative side:
The minister has a lot of power to limit the application of the law, often without judicial review. It is mostly silent on leaving existing legislation in place (ie official secrets acts, etc) that allow for withholding.
Some of the exemptions are very broad. There is no definition of personal information, so it could apply to all sorts of government records about official activities. Personal information is withheld forever.
The law also does not apply to security or intelligence services, including the RBPF. That kind of exemption is potentially very flexible.
Thirty days is pretty slow for responses in a small jurisdiction with not a lot of files. And it can be delayed another 30 days.
Vexatious and unreasonable requests exemption is undefined.
Posted by: larry smith | February 01, 2012 at 02:29 PM
Actually wanted to comment on the Gerrymandering article, but the comments to that article are closed. Given the revelation in the Guardian today about citizenships "soaring" it appears that Mr. Dupuch deserves an apology, or at least a retraction. It always serves to take a moment before jumping to conclusions. More scrutiny and less ideology is required of our media.
Posted by: Philip Smith | February 03, 2012 at 10:28 AM
@Philip - Rubbish. This is stereotypical propaganda just before an election. The FNM accused the PLP of the same thing last time. More to the point, I have absolutely no problem with citizenships or permanent residencies given out according to law. The real issue is why these applications have not been processed before now. My family and friends have plenty of experience with PLP withholding of entitlements based upon race or political allegiance. I don't need faux lectures from you or Pierre Dupuch on this subject.
Posted by: larry smith | February 03, 2012 at 10:37 AM
I think the so called FOI is more correctly characterised as the Prfotection of information Bill. reminds me of a restaurant with great signage, decoration and an extended menu but every item you ask for is "unavailable" .
Posted by: Ken Clarke | February 14, 2012 at 03:46 AM
Where can I see the FOI draft bill? It's not on the govt's Draft Bills page.
Posted by: Jack Oshei | February 23, 2012 at 11:57 PM