The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed 1
“Openness is fundamental to the political health of a modern state.”
“Unnecessary secrecy in government leads to arrogance in governance and defective decision-making.” –Information Commission Office, UK
Periodically in this space, over the last month, I have been advancing the thesis that we might enhance our democracy by deepening and broadening the existing right to freedom of expression, principally through the reform of the text and jurisprudence of our defamation laws, and by the creation of a statal guarantee of a right to freedom of information; simply put, the right to know.
Arguably, to a significant extent, we already enjoy some freedom of expression, but that expression becomes more cogent, more democratically vital if the speaker is seized of the facts of the matter under discussion. It reminds me of one of the aspects of the defence of fair comment to a defamation action. The commenter is protected only so long as the comment is based on true or privileged facts. One is not permitted to invent facts, the modern disinformation of fake news, to comment on this fabrication and then simply pray the defence in aid.
In the political sphere, manifesto representations to enlarge the civic freedoms of information and expression also carry great electoral allure. The former Democratic Labour Party administration made such commitments in 2008 and as far as I can recall, the current governing administration has likewise undertaken to enact a local FOI statute.
To be totally fair, I do recall seeing a draft of an FOI Act at sometime during the DLP regime, but I am not aware that this was even put out for public discussion. And as yet, to my best knowledge, the current administration has not prepared a draft of the proposed legislation.
This apparent local difficulty of enactment, whether in the form of the past reluctance or the current delay -although one might be prepared to excuse this latter on the basis of a subjective prioritization-, is difficult to rationalize. Ours is not a jurisdiction reputed for its originality in the drafting of statutes and no fewer than at least four other regional jurisdictions have enacted similar statutes. These are Trinidad & Tobago (1999); Belize (1994); Jamaica (2002); and St Vincent & the Grenadines (2003).
Delay in enactment seems to be a regional norm, however. In a 2017 article entitled “Freedom of Information Acts in the Developing world: Lessons from the Caribbean for the Bahamian experience”, and published in the International Journal of Bahamian Studies Lisa Benjamin writes, “[The] enactment and implementation of FOIAs in the Caribbean has generally been characterized by delay. Bills often languish for many years without being passed, and, even when passed, many Acts are not implemented for some time. For example, in Bermuda, the Public Access to Information Act took over five years to implement. In Grenada, the 2007 Freedom of Information Bill has yet to be enacted, and the 2009 Bill in St Lucia has yet to be made law.”
She also posits a reason for my earlier query concerning local legislative inertia thusly-
FOIAs are designed to induce transparency and the provision of information, but also impose constraints and administrative burdens on governments. [citation]The passage and implementation of a FOIA may involve paradoxical incentives on behalf of governments, leading to benign or purposeful neglect in the implementation of these regimes.
As a matter of public information, the main principle behind the concept of freedom of information is that people have a right to know about the activities of public authorities, unless there is a justifiable and statutorily permitted reason for denying such disclosure. For example, the long title to the i994 Belize Act proclaims it to be “An Act to give to members of the public, rights of access to official documents of the Government and public authorities; to provide for public examination of records relating to Government’s financial, contractual and other transactions; and to provide for matters connected therewith nr incidental thereto. [Emphasis mine]
The stressed words in the policy statement above serves to corroborate the propositions in the epigraphs at the start of this column that openness is a fundamental aspect of political health and, as the UK Information Commission Office [ICO] posits, unnecessary secrecy in government leads to an arrogance (and hubris) that may turn out to be politically and, more important, electorally destructive as relatively recent events might have clearly demonstrated. Administrations must consider whether the ignorance of an electorate is worth the price of political obliteration.
The ICO advises public authorities as follows, “…an applicant (requester) does not need to give you a reason for wanting the information. On the contrary, you must justify refusing them information; and you must treat all requests for information equally, except under some circumstances relating to vexatious requests and personal data. The information someone can get under the Act should not be affected by who they are. You should treat all requesters equally, whether they are journalists, local residents, public authority employees, or foreign researchers.
A most pertinent question in this context is what bodies are made subject to disclosure under the Act? According to section 2 the Jamaica The Access to Information Act 2002 (as amended), these are public authorities include “a Ministry, department, Executive Agency or other agency of Government; a statutory body or authority; and, of some interest, any Government company which is wholly owned by the Government or an agency of the Government, or in which the Government holds more than fifty per cent shares…”
To be continued…