The Bahamas is yet to have a functioning Freedom of Information Act ...Maybe, it we don’t have one by the end of the year, Vienna can help

WHERE, oh where is that illusive Freedom of Information Act, 2012?

 

 

 

Tribune242

Nassau, The Bahamas

 

 

 

 

The Act was passed by the FNM Government shortly before last year’s election, which swept the FNM from power. It was to come “into operation on such date as the Minister may appoint by notice published in the Gazette, and different dates may be so appointed for different provisions”.

 

Since then, it has gone AWOL - missing without leave. Hardly a month had passed after their election to parliament in May last year than “learned“ PLP politicians began pontificating on what areas of news reporters should be covering. They wanted reporters to focus on more positive news.

 

At that point, someone should have whispered in their ears that if they made positive news, reporters would happily write about it. Journalists neither make the news, nor do they cover it up. However, they do record what news is made by others. At the moment politicians are excelling in creating news, news that obviously they wish reporters would ignore. The news that they are now making is neither positive, nor is it intelligent. But it does reveal a strong tendency to cover up – a tendency to blow smoke screens to divert attention. Such a tendency is only bait to a well-trained reporter.

 

Last year, one of these politicians advocated more investigative reporting. He believed that it would produce more balanced reports, which would create a better informed public. How right he was. But where was the Freedom of Information Act that would make it easier for reporters to get such information?

 

It was nowhere to be found, but Deputy Prime Minister Philip “Brave” Davis had the brilliant idea to suggest that there should be punishment for “biased reporting”. And who was to be the arbiter of what was a biased report? Why the government, of course.

 

Since the publication of leaked documents revealing the shameful conditions at the Carmichael Road Detention Centre, FNM leader Dr Hubert Minnis says his party will now push for the passage of the Freedom of Information Act. We must remind him that his government, before it was removed from office, had already passed the Act. It is just awaiting a date to start acting. Unless, of course, this government now plans to amend it, which Attorney General Allyson Maynard Gibson indicated in March was the intention.

 

According to the Attorney General, although her government wanted to enact the law as soon as possible, it was now under review. There were certain sections, she said, that needed to be reviewed. “We don’t want to have a situation where we have actually brought something into force and it can’t work.”

 

Can’t work? Can’t work in favour of whom — the people or the government?

 

Already there are so many forbidden areas in the present Act that there will have to be skilful manoeuvring on the part of reporters to get certain information into the public domain.

 

Already, although they have protested that they want a better informed public, Foreign Affairs Minister Fred Mitchell is uncertain if he will release documents in connection with the Cuban beatings if, and when the inquiry has been completed.

 

The environmentalists are pushing for the passage of the Act to protect the marine environment. If environmentalists had prior warnings of developments that could adversely affect the environment and the livelihood of Bahamians, they could protest sooner. But, so far, permits are approved behind closed doors and before Bahamians know it a precious wetland has been destroyed or a public beach has disappeared.

 

In June last year, the publisher of The Tribune attended the International Press Institute conclave held in Port of Spain, Trinidad to receive a posthumous citation awarded her father, Sir Etienne Dupuch, as the world’s longest serving editor, who spent his life defending press freedom and fighting against social injustice in the Bahamas.

 

At that conference, among many other things that impeded press freedom, the Caribbean’s criminal defamation laws were highlighted, as well as those nations that did not yet have a Freedom of Information Act. It was decided that the IPI would launch a campaign for change in these areas,

 

We knew that the Bahamas would be targeted and so we were relieved that, just before we left for Trinidad, the Freedom of Information Act had passed the House. We reported that the Bahamas did indeed have a Freedom of Information Act.

 

We know that IPI, headquartered in Vienna, would be very interested to learn that the new government was still sitting on it. In fact, the Bahamas is yet to have a functioning Freedom of Information Act. Maybe, it we don’t have one by the end of the year, Vienna can help.

 

September 03, 2013

 

Tribune242

 

Bahamas Blog International

 

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


By PACO NUNEZ
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?

pnunez@tribunemedia.net

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