by Larry Smith
Freedom of Information took centre stage for a brief moment last week when a coalition of ginger groups demonstrated in Parliament Square.
The demo was organised by Save the Bays, an environmental lobby whose leaders include Freeport lawyer Fred Smith, Lyford Cay financier Louis Bacon and activists Joseph Darville and Sam Duncombe.
Opposition leaders Hubert Minnis and Bran McCartney spoke to the small crowd of demonstrators outside the House of Assembly, but no government MP or minister would do so. The secretary-general of the Trades Union Congress also spoke.
“It seems like every entity in The Bahamas was represented besides the PLP,” Darville said, asking why the governing party seems to be “afraid” to engage with those calling for the rapid enactment of a Freedom of Information law.
This legislation was promised in the Free National Movement's 2007 election manifesto. The pledge was renewed by the Ingraham administration in its 2010 speech from the throne, and a Bill was tabled in parliament in October 2011—as the government’s term was running out.
Despite the fact that there had been no official preparation or public consultation, the Bill carried an implementation date of July 1, 2012.
Existing Bahamian law dealing with access to government information favours strong secrecy, and in some cases, absolute secrecy. That law includes the Official Secrets Act, as well as the rules that govern civil servants - otherwise known as General Orders.
However, notwithstanding the law, Bahamian officials have always been reluctant to grant public access to any information, no matter how trivial. It is a matter of power.
The 2011 FOI Bill was a close copy of the Freedom of Information law enacted by the Cayman Islands in 2007. The Cayman law had been formulated over several years by a Cabinet Office working group, which looked at similar legislation enacted by Britain, Canada and other West Indian nations.
The Caymanians also created a 16-member steering committee after the law was passed to guide the project to completion. And a separate implementation committee was appointed, headed by a Jamaican civil rights lawyer, which was responsible for training, awareness and procedures.
The Cayman law took effect in January 2009, and by all accounts has had a big impact on the way government authorities interact with the press and with the community in general.
I visited Grand Cayman and met with the Information Commissioner, Jennifer Dilbert, and her deputy, Jan Liebaers, in November 2011. At the time I wrote that "Dilbert and Liebaers have shepherded about 1800 freedom of information requests over the past two and a half years, 50 per cent of which were granted in full or in part."
The public authorities involved have included the Tourism, Immigration and Customs Departments, the Police, Cabinet Office, Legal Affairs, Lands & Surveys, Planning Department and the Water Board. But most requests have been aimed at the Police, and the Immigration or Legal Affairs Departments, Liebaers told me.
In fact, since the advent of the FOI law, many public boards and commissions in the Cayman Islands have made it standard practice to release meeting minutes on their websites - something that is unheard of in the Bahamas. (Whenever I asked for board minutes here as a journalist the typical reaction was incredulity.)
But as the Caymanian Compass newspaper noted, "More information is now available to the public about the operation and responsibilities of government agencies than has ever been available in the past.”
However, in the Bahamas, former Attorney-General John Delaney introduced a modified Freedom of Information Bill to the Senate in February 2012.
In addition to typographical corrections, the amended Bill restricted information application rights to citizens and permanent residents; and provided for the appointment of an information commissioner who would also act as data protection commissioner - a post created by another law that was passed in 2003.
The changes also confirmed that the Official Secrets Act would 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.
Exempt records were now sealed for 30 years - it was 20 years in the first draft of the Bill. And the law was to be implemented whenever the government decided to gazette it, with different provisions coming into force at different times if desired. As mentioned earlier, the original Bill had a specific timetable, calling for implementation on July 1, 2012.
It is worth pointing out that absolutely no consultative process ever took place for this Bill - unusual for a law that seeks to expand public accountability. The Tribune, for example, never received a draft and was not asked for input, so it is unlikely that other media groups were consulted.
The Data Protection Act also conflicts with the Freedom of Information Act. Under this little-known law, individuals have 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.
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.
Clearly, 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.
"We are not WikiLeaks,”Jan Liebaers told me in Grand Cayman. "Everything has to be balanced, but the government needs to be held accountable. All of us in the ICO believe in what we are doing, and making the law effective depends a lot on our office." The personality and reputation of the information commissioner contributes significantly to the success of the legislation, he said.
I asked David Banisar for his opinion on the current Bahamian law. Banisar is senior legal counsel for Article 19: Global Campaign for Free Expression (http://www.article19.org), a London-based human rights group. He has worked in the field of information policy for nearly 20 years.
"It has some good aspects generally,” he told me, "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 he pointed out that the minister has a lot of power to limit the application of the law, often without judicial review. And 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 police. That kind of exemption is potentially very flexible.”
According to a recent report in the Nassau Guardian, Education Minister Jerome Fitzgerald said the current law requires dozens of amendments, or would need to be totally replaced. He said he would soon be in a position to set out a timeframe to address these deficiencies.
In August 2012, Prime Minister Perry Christie pledged to enforce the Freedom of Information Act within his current term. But it seems you can’t really take a word he says seriously. His positions change like the wind.
Or, as Loftus Roker put it: "He just keeps going backward and forward."