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”.

34 comments

  • Freedom of Information would then doom this BBLP government and the World will know they are crooks, The online service of the Land Registry will be fraud for the books were rewritten, So they are and will be putting out more Fraud, Massive Land Fraud and PONZI coverup, All the records of land fraud would also show land being sold not recorded or 20 years later to say we have “good title’ but none will have ‘Clear Title ” for Banking loans, Lawyers lawyers LAWYERS crimes, BBLP gone by 2020 No-Confidence Motion , Bajan Free Party/CUP

    Like

  • @Jeff

    In your opening:

    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.

    Implied is that you are receptive to freedom of expression given its importance being ‘ascribed the lofty status of a fundamental constitutional guarantee‘. However, later in your column there is clear scepticism by you 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’.

    Can you clarify for a not so bright blogmaster please? What is your opinion the way forward for Barbados as far as implementing FOI to satisfy public expectation.

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  • Jeff Cumberbatch

    Can you clarify for a not so bright blogmaster please? What is your opinion the way forward for Barbados as far as implementing FOI to satisfy public expectation.

    @David, do not put yourself down.:-) I am suggesting that while freedom of information is critical enough to democratic existence to be considered for constitutional right status by amendment especially given the recent amendments for comparatively unimportant reasons,this is unlikely to happen here and I gave the reasons.

    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.

    The second point relates specifically to the T&T case of Sharma. If we follow that decision, then while it might be possible to ascertain by FOI how many public officers have not filed declarations as they should have, we are not to be made privy thereby to the financial details of those who have filed since section 79 makes this information highly confidential.

    The two points are unrelated.

    Liked by 1 person

  • de pedantic Dribbler

    Dean Jeff shouldn’t the fundamental question for any FOI request be based on 1) does the data release compromise national security and at personal level of financial disclosures 2)does the information compromise the individual’s personal rights!

    At query one there is obviously the argument that such a broad brush gives govt too much room to dissemble and claim security constraints for the most doubtful of issues but any dutiful commission with the power of the courts as their legal master can administer that fundamental position with all appropriate guidelines.

    At two seems easier to me. Everyone prepares tax documents which (if accurate) provide quite an insight into their lives…those tax forms can be detailed or they may be less so.

    Thus why is it that onerous to demand that our public officials provide a comprehensive disclosure analysis of their financial health …there is no need to know how much income and revenue they have to the last $100 but certainly to within the last $5,000 – $10,000.

    Similarly no need to know the specific value of their or their spouse’s owned home and/or rental properties, stocks, bonds, other financial securities, other assets and liabilities but definitely we should know broadly the value of all that.

    Why this continues to be a nettlesome issue is bothersome.

    When folks come into public life we find out about their education, how they grew up, about their parents and family life etc etc yet it is so onerous to know that have a net worth of $3 mil comprised of family home, rental property in Bim of X, outside Bim of Y value, other real estate shares_value X and Y accordingly, stocks in local companies of X value, and Y value of stocks of non-local etc. That should be simple and mandatory.

    If you don’t want to disclose…then remain a private citizen.

    The example you gave of Chandresh Sharma v The Integrity Commission is a clear example of the ridiculousness and dissembling intent of the political class…merely to release the names of persons who HAVE TO FILE and those who did not to so is considered a secret! That is the epitome of obfuscation.

    From your remarks it appears the names were ordered released, correct?

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  • “As with all other civic freedoms, the right to freedom of information is not absolute. ”

    Mia’s government may as well enact the legislation, she herself admitted that although aspects of government decisions are secret and only allowed within the confines of the highest level of government…someone in that inner circle gave that information to officials at Courtesy Garage so they could follow a delegation of government officials to Europe ..we can be sure the information was sold.

    So what is the point of keeping all these secrets from the electorate and same people who pay government ministers and civil servants salaries, while they take the same information that is supposed to be this big secret and sell it to self serving crooks in the minority business community for financial gain..

    It defeats the purpose of these secrets act and put the majority population at risk..

    Free up the damn information TO THE PEOPLE and there will be nothing for government ministers or civil servants to sell to the enemies of the people.

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  • BTW Jeff…are those hazel eyes you got there?

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  • @David

    Yuh got me confused, is that a stock photo on Torts in Turkish next to JC or is Turkish a language he is competent in?

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  • @Sargeant

    You do not miss a trick!

    It is a stock photo from legal folder. The blogmaster was deliberate to select from a stock photo for obvious reasons.

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  • All Members of Parliament should be required to file declarations of income, assets and liabilities.

    Becoming a politician is a choice.

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  • @Hants

    Yes this is true but bear in mind the hard nut to crack is that we have a political class that has the country on lock down meaning it is about self interest over national interest. In some cases it is how this class because of the make-up i.e. lawyers is predisposed to engage in relevant policies.

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  • sirfuzzy (i was a sheep some years ago; not a sheep anymore)

    Freedom of Information(FOI) is something to be hoped for. Govt just have to place the stick “secret” and viola its not for public consumption.
    I was told/brainwashed that we are running an experiment called democracy. “Govt of the people for the people by the people” etc . As this is a life long experiment for all of us we get to tweak the formulation to hopefully make it better .

    A FOI act would be helpful only if it serves the purpose that we the people think it should; as opposed to he purpose the drafters think it should.

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  • I have heard the argument that FOI for politicians in Barbados would be a problem for those who have liquid assets

    because Bajans would be begging politicians to pay their light bills and give them cash to buy food.

    @ Jeff C. our “Billy Bones ” would be displeased with the composition of the above. lol

    Condolences to the family and friends of the late Canon Jones. I remember him as a kind pleasant master at Kolij in the 60s.

    Liked by 1 person

  • @sirFuzzy

    Your comment is exactly what motivated the blogmaster’s question to Jeff.

    Like

  • sirfuzzy (i was a sheep some years ago; not a sheep anymore)

    Often we get legislation the contains a lot of legal mumbo jumbo and spaghetti logic that is destined and designed to confuse and bewilder the average joe/jane that just want to know why the “govt” tek away my land an aint find me a new spot as promised ten years ago lol.

    Liked by 1 person

  • Bernard Codrington

    Freedom of Information legislation is not a panacea for democracy after all.

    It discourages those who have talent but treasure their privacy from entering public life.

    It will hardly deter the corrupt since he will always find a way around the provisions of the Act as he did against previous legislation.

    So what is it we are really trying to achieve?

    The answer still rests with the Electorate. Ignore those with characteristics you do not approve of. Do not vote for them.

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  • Jeff Cumberbatch

    BTW Jeff…are those hazel eyes you got there?

    Heh heh heh!

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  • Jeff Cumberbatch

    Condolences to the family and friends of the late Canon Jones. I remember him as a kind pleasant master at Kolij in the 60s.

    @ Hants, that demeanour lasted well into the 70s

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  • Jeff Cumberbatch

    At query one there is obviously the argument that such a broad brush gives govt too much room to dissemble and claim security constraints for the most doubtful of issues but any dutiful commission with the power of the courts as their legal master can administer that fundamental position with all appropriate guidelines

    @DPD, it is a matter of electoral trust in an administration, I suppose.

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  • Jeff Cumberbatch

    Freedom of Information legislation is not a panacea for democracy after all

    Is there any really,, Bernard? Every little bit helps, I suppose, and freedom of INFORMED expression is certainly a useful tool

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  • Bernard Codrington

    WARU at 11 : 13 AM

    Well well you seem surprised that Jeff should have hazel eyes. I keep reminding you that most Barbadians are related. That is the main reason we never really had slave rebellions.

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  • Bernard…where is the surprise, I was not sure I was seeing right and thought it was a reflection.

    Ya really too. proud of ya own bullshit.

    Ah want you to know all those blue, hazel, green eyes, blonde, red and multicoloured hair came directly from our African ancestors as mutated genes..

    Liked by 1 person

  • Bernard Codrington

    WARU at 4 :11 PM

    Thanks for confirming my assertion.

    Now we can get on with the real business at hand….. working towards getting the ship Barbados on an even keel

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  • sirfuzzy (i was a sheep some years ago; not a sheep anymore)

    Bernard Codrington August 26, 2018 2:12 PM

    We vote for the willing/nominated not the best or well intended or saint to be.

    If by chance we managed to have two utterly deplorable persons nominated for a constituency i guess u may hold our nose and vote for the ;lesser of two evils?

    We have a first pass the post system. But imagine a scenario where two utter deplorable persons thru their ability to rig or manipulate their respective nomination processes at the branch level find themselves as candidates for the election.

    Let says the constituency has 3000 plus electors. Now at the end when the voting is done Deploarable X has 125 votes Deplorable Y has 115 votes. By in large persons boycotted voting because they are both horrible candidates. Now less then 10% of the electors voted but under the first pass the post system candidate X will be elected. We need to also have a look at voter turn out as a matrix on the selection of a person to sit in the HOA.

    Liked by 1 person

  • @sirFuzzy

    You may recall when Mia was booted by the gang of 5 she promised that she would democratize the election process at the branch level.

    We wait!

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  • Piece Uh De Rock Yeah Right

    @ The Luminary Mr. Jeff Cumberbatch

    De ole man had to read your article 5 times to start to understand what it meant.

    Let me rephrase that

    The old and slothful of thought old man, ignorant of these things juridicial, was force to read your article a few times BEFORE some semblance of comprehension sunk in.

    So my takeaway is that “…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…”

    So as with the Integrity Legislation of 2018? it would appear like if the act to give the population Integrity Legislation AND FOIA is in fact just a facade and “full of hot air and signifying nothing?”

    Liked by 1 person

  • Bernard Codrington

    @ PUDRYR at 7 : 00 PM

    Like you I followed every Brownian motion of the argument and came to the same conclusion. Perhaps we are missing something here.

    Like

  • sirfuzzy (i was a sheep some years ago; not a sheep anymore)

    David August 26, 2018 6:09 PM

    But with the back room dealing; any branch level nomination process can/may be hijacked by a crafty opponent.
    What i am thinking is that we should have a rule that says a certain percentage of the registered elector must vote in a constituency for he first past the post rule to apply in order to send a candidate/nominee to the HOA. This will give the electorate one more weapon when it comes to electing a person to represent them in the HoA.

    All Electors will have the power of the boycott to nullify whatever (nastiness) may have happened at the branch level.

    Like

  • Jeff Cumberbatch

    So as with the Integrity Legislation of 2018? it would appear like if the act to give the population Integrity Legislation AND FOIA is in fact just a facade and “full of hot air and signifying nothing?”

    Piece, it depends on what you were hoping to gain from each Act or from their combined effect. If you were expecting to find out the assets of the public officers from their filed declarations, you will be sorely disappointed. If you were seeking to discover who had and who had not filed, then this information is available under FOI as in the Sharma case

    Liked by 1 person

  • Piece Uh De Rock Yeah Right

    @ The Luminary Mr Jeff Cumberbatch

    Then, as per your 8.36 p.m. summation the issue of Integrity in Public Life and a contention by a private citizen that a Public officer did increase his/her well being at a rate that was inconsistent with their assets that were declared under the IL of 2018 is a moot expectation.

    And all of these public announcements are indeed solely for the sheeple to have a false notion that the incoming administration has done nothing to permit for their assets to be known IS A LIE? sorry figment of the imagination?

    O me miserum!

    And here I was thinking that all is well and the combination of the two of these illustrious Acts heralded the coming of Lady Truth in none other than the personage of our Leader Prime Minister Mottley.

    I am going to caution the grandson NOT TO USE any part of your pronouncement about being sorely disappointed in his Stoopid Cartoons lest it be attributed to you incorrectly

    Like

  • Daily Keek High Times

    If you don’t get involved in politics far right alt right right white racists will like Trump Brexit collusion with Russian Mafia money

    white supremacy purge thread spam bucket*

    Seems like stink ass trolls have lef’ and gwaan except for some holding letters about bible and trump

    Nowadays white supremacy manifests as bitter twisted white trolls plague on http://www.net and bu.net

    4 white trolls on bu are FC, MB, Law san, 45bent

    in own category are bowman fambily jack-john and n■■■■■ doctor fat george aka angry old bastard

    them grudgeful bad minded them hypocrites believe it

    (*) white supremacy purge “≠” white purge

    Like

  • pieceuhderockyeahright

    @ the Luminary Jeff Cumberbatch

    So this is my 6th reading.

    You said and I quote “…After all, it could be reasoned, we have amended the Constitution in recent times for far less…” Heheheheh

    You do know that all the so called lawyers come here to peruse your pronouncements?

    And a few of particular persuasions will take offence at that.

    But I digress as usual.

    What is the correct balance? and how do we achieve it?

    You said and I quote “…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…”

    So I sat a while and pondered this matter and arrived at this as my simplistic parallel

    I am a renowned PhD in hematology and I am compiling data on the spread of AIDS in different social groups.

    Under the FOIA I would be entitled to access the aggregate Health Records of the Ministry of Health BUT I AM NOT ENTITLED TO THE NAMES OF THE PARTIES even if I were of the opinion that said ministry was fabricating its statistics to continue to draw down funds from an international funding agency under its AIDS reduction program.

    I am consequently at a loss as to how to “balance” the ensuing restraints arising from that “exemption from disclosure” with what should justifiably be exposed in the interest of the public good.

    Liked by 1 person

  • pieceuhderockyeahright

    @the Honourable Blogmaster your assistance please with an item for the Luminary Jeff Cumberbatch

    Like

  • Jeff Cumberbatch

    I am consequently at a loss as to how to “balance” the ensuing restraints arising from that “exemption from disclosure” with what should justifiably be exposed in the interest of the public good.

    @ Piece, the balance will be struck by the Information Commission (or Commissioner0 whose decision may be appealed to the Court if you are dissatisfied with it

    Like

  • @Jeff

    You followed Sir David’s submission today?

    Liked by 1 person

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