Freedom of Information in The Bahamas

by Larry Smith

Without the press, the modern emperor – whether dictator or elected president – is insulated, encapsulated in a cocoon of many who are either sycophants or who are truly awed by those in power. -- David Steinberg

It is in the public interest that everything should come out. -- Tony Benn

Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. -- Max Weber

Frankly, I find it difficult to write about this subject - it's such a no-brainer, and so crucial to the good governance of the country that it upsets me.

Here is the bare-faced truth: Public authorities act in the public interest. There is no legitimate value in keeping public information private. And without access to information we cannot hold public authorities to account.

In fact, colonial authorities purposely used secrecy to maintain their power and prestige. And although we gained our "freedom" from British rule over 30 years ago, we have yet to persuade our homeboy rulers to tolerate freedom of information. On the contrary, they continue to equate secrecy (of even the most trivial information) with power.

In Kenya, for example, a file of newspaper clippings was marked "very confidential" and access to it denied without the permission of the permanent secretary. And we have no doubt that at this very moment some Bahamian bureaucrat is refusing to answer a reporter's phone call or email.

Our 1973 independence constitution guarantees freedom of conscience, expression, assembly and association. It also says we are free "to receive and impart ideas and information without interference."

Unfortunately, I have never been able to "receive or impart" information without some pompous civil servant or politician running "interference", which indicates to me that the entire government is unconstitutional.

The principle of freedom of information – that citizens have a right to information held by public authorities – is increasingly accepted in the developed world, although access laws face huge implementation problems and often receive only lip service from bureaucrats.

You may think that freedom of information is an American idea, but you would be wrong. It was first legislated in Sweden. A libertarian parliamentarian named Anders Chydenius is regarded as the father of freedom of information as we understand it today.

In 1765 he published a pamphlet called The National Gain, calling for the abolition of trade restrictions, the lifting of censorship, and freedom of information. And the following year he persuaded the Swedish parliament to give the public free access to all official documents, as well as parliamentary reports and records.

This law required that official documents should "upon request immediately be made available to anyone" at no charge. And at the same time, the Swedes established the world’s first parliamentary ombudsman.

It was not until after the Second World War that the US mandated government agencies "to keep and maintain records open to inspection by the public." That was followed by a 1958 law barring bureaucrats from using legal precedents to keep the public's business secret. But a Freedom of Information Act was not passed in the US until 1966. And it had to be strengthened in 1974 following the Watergate scandal.

From the 1960s onwards, pressure grew on governments around the world to legislate access to public information. Australia, Canada and New Zealand all enacted FOI laws in 1982. But the United Kingdom delayed until 2000, and that law did not fully kick in until 2005.

In the English–speaking Caribbean, Antigua and Barbuda, Belize, Jamaica, and Trinidad and Tobago have all passed access legislation. Others - including the British Virgin Islands, the Cayman Islands and Guyana -are discussing draft legislation. The Jamaican law was helped along by the (Jimmy) Carter Centre at the request of former prime minister P. J. Patterson.

Common features of all these laws include a general right of access to information held by public authorities, subject to exemptions protecting specified public interests. Disclosure can be refused only where it can be shown that the information would cause harm, and there is usually a right of appeal to an independent body.

Freedom of information laws have turned up some interesting facts over the years. For example, USA Today discovered that President Gerald Ford gave Indonesian strongman Suharto the green light to invade East Timor in 1975. That invasion killed 200,000 people and later had to be reversed by the United Nations at great cost.

And the Associated Press was able to substantiate a long-held African-American allegation that white people had cheated them out of their land. In many cases, documents showed that white officials had simply approved the transfer of property deeds.

Some of the successful requests under the Jamaican Access to Information Act covered details of contracts and expenditure relating to infrastructure projects, staffing levels at a public hospital, and school test scores.

In Britain, freedom of information requests have found that scores of police officers have criminal records; that the prime minister wined and dined celebrities at taxpayers' expense; that a clandestine British torture programme existed in post-war Germany; that thousands of women get cosmetic surgery on the National Health Service; that the government planned to search for the Loch Ness monster using a team of dolphins; and that Britain helped Israel build its nuclear bomb 40 years ago.

Good stuff that we would never know about otherwise. Imagine what we could uncover here. Why, perhaps we could even learn the results of successive police "investigations" that never see the light of day - such as the probe into the beating of a foreign journalist by a Defence Force officer, or the visa scandal, or the public housing scandal - to name a few.

But it's not just about curiosity. The aim of a freedom of information act is to promote good governance by enabling people like you and me to participate in the making and administration of our national laws and policies. And the risk of government embarrassment is no justification for keeping public information secret.

The British FOI law covers 100,000 public bodies - including government departments, schools and councils, which have 20 working days to respond to requests for information. And no-one has to give a reason for their request. An independent authority enforces the law.

In its 2007 manifesto, the Free National Movement promised to enact such a law for the Bahamas. But that commitment has appeared in earlier election platforms too. And, as we all know, the mere passage of a law is no guarantee that its provisions will not be ignored.

Experience in other countries suggests that the key elements that make an access to information law effective are: political will, information management capacity, and training to change the mindset of civil servants as well as the public. More importantly, the law needs to be designed with actual implementation in mind rather than just going through the motions.

According to Laura Neumann of the Carter Centre: "Effective implementation is a joint partnership between the holders of information (government or the private sector) and the requesters (citizens, civil society organizations, media etc.). Recognizing that there is dual responsibility helps us understand the nature of the challenge and contributes to the design of viable solutions."

As Richard Calland recently wrote in the South African Mail and Guardian newspaper, "promising transparency is one thing, delivering it is quite another."

Comments

[bey-liff]

not really FIO but it's interesting info right there for the reading

http://www.courtofappeal.org.bs/

Many crimes that made the headlines and then faded out of memory (because the court process takes so %%#$&*# long) are listed here with basic info about who was convicted, what they did, how many years they got and the status of their attempts at appeals.

I love reading the ones where especially guilty and evil people appeal time and again and get denied over and over.

[larry smith]

well, thanks for reminding me about this site, but I am not impressed.

The earliest judgements date only from 2001, and many are mere citations - not written.

[nicob]

Larry, as I type, this link is not working. It's up and down, however, and it's worth coming back to in case it comes back up.

It's a link to General Orders, which specifically prohibit any civil servant from writing or speaking to the press without the express written permission of his or her Permanent Secretary. Unconstitutional? Perhaps, but it's currently legal. Until General Orders is challenged in the light of the Constitution reporters and ordinary citizens will find it impossible to get any information out of government workers.

Just thought I'd share.

NB

[nicob]

Whoops! Here's the link:

http://www.bahamas.gov.bs/bahamasweb2/home.nsf/vContentW/11DFF3FEDD3F549B06256ED3005CEB38!OpenDocument&Highlight=0,general%20orders

Or go to http://www.bahamas.gov.bs/ and find the link to General Orders. The whole site appears to be down for the moment, but will come back up eventually.

[larry smith]

Thanks Nico - a good angle to follow. But of course, we can't even get a ps or minister to respond most times.

BTW, I am considering a national to-do list for next week's column. If you - or anyone else - have suggestions I would be happy to include. Preferably items that could be tracked by performance over the life of this government.

[EB Christen]

-Straw Market
-Movement of Port
-Marina at west end of Bay Street
-More Marina/Residential East End of Bay Street
-Bay Street Revitalisation
-Dredging Harbour
-AIRPORT IMPROVEMENTS! SHORT AND LONG TERM!
-SCRAPPING ANCHOR PROJECT MODEL AND AIMING FOR UPSCALE, SMALL ECO-FOOTPRINT TOURISM DEVELOPMENT
-Restructuring Duty and Stamp Tax to improve business competitiveness vis a vis Miami (aka LOWERING IMPORT DUTIES IN SENSIBLE MANNER)
-Building Maximum Security Prison Separate Facility with adjoining court structure
-Eliminating the RETARDED prison bus
-Moving Prime Minister and Cabinet Offices and citing area for Major Hotel Investment
-5 star Casino Downtown - get cruise passengers off SHIPS!
-More Residential Development Downtown
-Move NAGB or Expand it so that the Current Government Buildings at Rawson Square are the main NAGB area - exposing Bahamian Arts and Crafts to the 4+ million visitors we have every year - Music Museum, Junkanoo Museum, Historic Museum and NAGB building at Rawson Square Government Complex
-Building BRAND NEW Parliament near COB or on Independence Highway or in area over the hill and giving fair market value and new homes to displaced persons - thus eradicating slum areas and redeveloping the capital at same time
-PUBLIC TRANSPORT VISION - Monorail over East/West Highway with bus system revamped in harmony? (that's crazy i know, but crazy ideas are needed now - out of the box)
-EDUCATION REFORM - make education at least 10 - 15% of our budget, 31 million is a joke! and stop wasting time... this country is throwing away its future...
-Revise import duties on motor vehicles, giving breaks to eco-friendly cars and increasing tax on gas guzzlers! time to get serious!
-Enforcing road safety and traffic laws and enforcing emission standards on jitneys, big trucks and personal vehicles
-Increasing police presence and aggressively marketing police as friend in all communities and schools
-Teaching and preaching value of education not just for economic value but for social and political value
-HOLDING government ministers accountable
-PASSING FREEDOM OF INFORMATION ACT
-Pushing for the learning of an additional language in all schools, be it Spanish, Japanese, Chinese, French or German - for both tourism and banking (Bahamians need to wake up and realise that there are many, many good jobs in this country but if they aren't qualified - they won't get them and aren't entitled to them - they have to earn them via education

Sorry this is written as a rant, but I am pressed for time and there are so many. Cheers to all and blessings upon our beautiful Bahama-land.

[muddo]

Why do we, the tax payers, have to pay for a 'straw market' for vendors to sell knock off bags?
If, like they say, they can only make money selling these bags, let them go find their own space in which to sell them.

I want someone, anyone, to give me a good and sound reson why we, the tax payers, ought to pay for premises for them!!

[nicob]

Updated link to General Orders:

http://www.bahamas.gov.bs/DPSE/General_Orders.aspx

[nicob]

Specific articles treating the release of information by public servants:

http://www.bahamas.gov.bs/DPSE/19_Correspondence_and_Public_Business.aspx

[anonymous]

The FNM's booklet they released just before election reads like one long to-do list.

I too have a crazy idea (less crazy than a monorail) for making downtown Bay Street and Shirley Street pedestrian only (it involves making the people who own paid parking lots filthy rich, people who rent scooters filthy rich, and 2 decent bus terminals for the benefit of the jitney riding public, it would also create a couple above minimum wage jobs for non-stop street cleaning and trash pickup)