The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed 2
In last week’s column – The Jeff Cumberbatch Column – Enacting the Democratic Right to be Informed – Part I, we broached the topic of enacting a local freedom of information statute as has been promised from time to time by various incoming-governing administrations. Given the nature of this freedom and its significance to the democratic ideal, some may well query whether it should not be ascribed the lofty status of a fundamental constitutional guarantee. After all, it could be reasoned, we have amended the Constitution in recent times for far less.
The jurisprudential question as to whether the right to freedom of information is truly constitutional in nature or should be the subject of municipal enactment has engaged the US Supreme Court. There, the Court held that neither the First nor Fourteenth Amendments, that treat the right to freedom of expression and that to equal protection of the law respectively, mandated a right of access to government information or sources of information within the government’s control.
The Canadian reasoning on this point differs. In Ontario (Public safety and Security) v Criminal Lawyers Association, a unanimous Supreme Court of Canada opined-
We conclude that the scope of the s. 2 (b) protection [the right to freedom of expression] includes a right to access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints.
It would be difficult to argue that the position here is identical to that in Canada. In light of the relatively secretive nature of government administration historically, the “originalist” argument that all of the fundamental rights, including that to freedom of information, preceded the coming into effect of our Constitution is unlikely to resonate juridically, and the qualificatory nature of the expression of the existing fundamental rights would require an unprecedented judicial activism to justify its existence. A statute is therefore the more effective and likely recourse for the optimal enjoyment of this freedom.
Perhaps the most controversial aspects of the freedom of information legislation are the identification of those items that are exempt from disclosure and the extent of the discretion of a relevant authority to refuse disclosure. While the first is generally a matter of policy as reflected in the legislative text, the second has engendered substantial body of jurisprudence.
One decision that may be of some topical interest to Barbadians in this regard is the Trinidad & Tobago Court of Appeal decision in Chandresh Sharma v The Integrity Commission. Here, Sharma submitted an application under the Freedom of Information Act, 1999 to the Integrity Commission (the Commission) for the following documents:
(a) a list of all persons in public life who were required to file declarations of income, assets and liabilities and statements of registrable interests for the year 2003 by August 15, 2004 who have not yet done so; and
(b) a list of names of persons who have not complied as per above; who have been granted extensions of time to comply and the new deadline.
The Commission refused this request on the ground that the provisions of the T &T Integrity Act precluded its disclosure. Section 79 of our Bill is in pari materia [covers similar ground]-
Any information received by any member or officer or other employee of the Commission, in the exercise of the functions of such person under this Act, including information contained in any document received by that person by virtue of this Act, shall not be divulged by any such member, officer or other employee, except where the information is required to be produced for the purpose of complying with any other enactment or the order of any court or for the purpose of prosecution for an offence.
Sharma thereupon filed for judicial review of the Commission’s determination claiming that the Integrity Act does not prevent or forbid the disclosure of the requested information and that the Act does not regard or treat the requested information as secret. In response, the Commission contended also that it was not a public authority and that the request should have been made to the Minister. Both of these arguments were unsuccessful.
As to the substantive issue, the Judge held that what the section decrees secret and confidential are the declarations which are required to be filed under section 11 of the Integrity Act and the records of the Commission in respect of those declarations as well as records and information relating to such declarations. He was of the opinion that the information requested did not amount to records or information “in respect of” or “relating to” any declaration filed with the Commission.
This decision, if followed locally, appears to entail that despite the enactment of FOI legislation in Barbados, the content of the declarations of the specified public officers will not be a matter for public discourse, although their failure to file such a declaration may very well be.
Litigation over access to information has also ensued in jurisdictions such as Canada, South Africa and Australia. I will have to reserve the further discussion of these for another forum.
As with all other civic freedoms, the right to freedom of information is not absolute. Indeed, each of the existing regional statutes contains a similar section extensively cataloguing documents as exempt. According to the Trinidad & Tobago legislation, these include Cabinet documents; defence and security documents; International relations documents; internal working documents; law enforcement documents.; documents affecting legal proceedings or subject to legal professional privilege; documents affecting personal privacy; documents relating to trade secrets; documents containing material obtained in confidence; documents affecting the economy, commercial affairs and certain documents concerning operations of public authorities; and documents to which secrecy provisions apply.
It appears most likely that Barbados will follow this drafting style for its own legislation.
I dedicate this week’s column to the memory of the late Canon Ivor McKinley Jones, our own “Billy Bones”, and the best Anglican Bishop Barbados never had, who shuffled off this mortal coil last Thursday at 101. I do not know whether he followed my weekly Musings, religiously or at all. He taught me English in the Lower Sixth Form many years ago and was the master in charge of our then Current Affairs (now sub nom. Communication and Caribbean Studies) programme. I will never forget the look of exasperation on the goodly cleric’s face when a celebrated local writer at one of these sessions extemporized on the varied and contradictory uses in local parlance of the comparative “as shite”.