Wednesday, October 19, 2011

The Bahamas government's Freedom of Information Bill falls short of a true surrender of control over information to the public...

The public must defend its right to know - now more than ever

Tribune News Editor

Nassau, The Bahamas

Opposition MP Fred Mitchell thinks the government's Freedom of Information Bill falls short of a true surrender of control over information to the public.

I couldn't agree with him more. Clogged with exemptions, restrictions and executive vetoes, the draft reeks of reluctance and caution.

Mr Mitchell is right to point out that even as it creates an independent Information Commissioner, the Bill undermines the position through the power it vests in the Cabinet minister responsible for government information.

The minister can overturn the commissioner's decisions, deem any category of information exempt from release, and all his decisions are final, as the Bill stipulates that "no judicial proceedings or quasi-judicial proceedings of any kind shall be entered in relation thereto."

But what did Mr Mitchell really expect?

Only in the last 50 years and on the heels of a global surge in demand for "open government" have unenthusiastic politicians around the world been forced into passing such laws.

Still, even the most liberal Freedom of Information Act (FOIA) out there restricts access far beyond what is strictly necessary - the preservation of national security and the protection of privacy rights.

It isn't hard to see why. Former British Prime Minister Tony Blair called the FOIA he passed in 2000 the "biggest mistake" of his career.

"For political leaders, it's like saying to someone who is hitting you over the head with a stick, 'Hey, try this instead', and handing them a mallet," he wrote in his memoirs.

More fundamentally, people who have power tend to dislike giving it up, and all politicians worth their salt know that information is power.

Take this general truth and add it to the particular culture of secrecy, confusion and evasion that pervades the public service in the Bahamas, and it seems obvious that no legislation brought by a local political party was ever going to qualify as cutting-edge.

But this much can be said for the FNM: they actually brought an FOI Bill before parliament as promised. The PLP had five years in office before 2007, and rather than advance the cause of the people's right to know, they managed to set it back several years with their constant attacks on the press and miserly attitude to releasing public records.

And, for all its shortcomings, the Bill still represents a huge leap forward for the Bahamas.

Take for example its stated object: "To reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely: governmental accountability; transparency; public participation in decision making."

That a government would actually enshrine such principles in law in a country where an obstructionist bureaucratic ethos has persisted through centuries of British rule and almost four decades of independence - and where only a few years ago a senior official described transparency as "a fad" - is quite significant in itself.

Among the Bill's other positive aspects are:

* that those applying for access to government records would not be required to give a reason for their application.

* that when the arguments for disclosure and non-disclosure are equal, the authorities are mandated to rule in favour of disclosure.

* that the authorities must acknowledge receipt of every request and

respond within a specified period - in most cases, 30 days.

* that authorities are mandated to grant a request unless one of the exemptions listed in the Bill applies, and must explain their reasons for every denial.

* that the legislation has teeth - if a public servant is found to have altered or concealed a requested document, he or she faces a six month prison sentence and a fine of up to $100,000.

* that while significantly undercut, the role of the commissioner is nonetheless expansive, and includes the right to make recommendations for change within government entities, refer cases of criminal activity to the police, initiate his or her own investigation into any department's cooperation with the Act, and publicise the new rights members of the public would enjoy.

* that all government employees would be subjected to training on freedom of information, and each department would have an information manager to whom all requests and complaints can be directed.

Just imagine for a moment what all this could potentially mean in a system where most requests for information are greeted with silence, suspicion, or open hostility; where journalists are laughed at when they try to access public records, and citizens have to fight - sometimes for years - for land papers or legal documents that belonged to them in the first place.

And, there is one clause in the Bill that has more potential value than all these put together.

It concerns how whistleblowers would henceforth be dealt with, and is worth quoting in full: "No person may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment-related obligation, for releasing information on wrongdoing, or which would disclose a serious threat to health, safety or the environment, as long as he acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment."

Now this would indeed be revolutionary.

Until now, honest public servants have been cowed into silence by the fear - sometimes imagined but often very real - that they would be victimized or even prosecuted for speaking out.

If this clause convinces even one to come forward with evidence of corruption or mismanegment, it would have been worth the trouble, as it would have the rest of the public service looking over their shoulders.

As with all transparency laws, the point is not so much to create a system that identifies all past wrongdoers, so much as it is to demonstrate the potential for exposure, and thereby kickstart a gradual change in culture.

But for any of this to happen, proper enforcement is vital. Laws that aim to change ingrained attitudes must inspire confidence.

This is where we come in - the journalists, activists, academics, and concerned citizens who want to see this become a more open and transparent society.

We cannot rely on politicians, who could potentially have more to lose than anyone else under this law, to do it for us.

The Bill may give the new Minister of Information the final word on any particular disclosure or even access to whole categories of information, but we still have the last word on the immediate future of his or her political career.

After it becomes law in July of next year, each and every denied application that gives off the slightest whiff of frivolity or self-service should be denounced to high heaven, and the minister reminded at every opportunity that while the judiciary may not have a say when it comes to freedom of information, the court of public opinion does - now more than ever.

As always, The Tribune stands prepared to publicise any and all credible claims of unfair treatment under this law.

If a large enough segment of the public joins us in this commitment, the concerns about executive power identified by Mr Mitchell might actually serve as an advantage, in that they draw the battle lines for us - the public on one side, armed with exposure, and politicians and the public service on the other.

And, of course, if this approach doesn't work, Mr Mitchell and his colleagues say they fancy their chances in the upcoming election.

If they do win, I'm sure they'll move immediately to lessen the powers of their own Minister of Information.

* What do you think?

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