Recommendations for Freedom of Information Bill

A committee formed by the non-partisan civil society organization, Citizens for a Better Bahamas, has reviewed the government’s proposed Freedom of Information Bill and recommended a score of improvements.

The draft Bill was published in May by Education Minister Jerome Fitzgerald, the cabinet minister who is responsible enactment. The Bill will supersede the 2012 Freedom of Information Act passed just before the general election, but never put into force by the current government.

Freedom of Information laws seek to give citizens a legal right of access to government information, subject to certain qualifications. Most countries in the region already have such laws in place, which experts say help to improve trust in government by ensuring transparency and accountability.

A previous critique by the Centre for Law and Democracy based in Halifax, Canada, said that while the revised Bill had some modest improvements, it still failed to meet international standards in many respects.

One of the key recommendation in the CBB review is to strengthen the independence of the information commissioner, who will administer the Act. The draft Bill outlines a familiar process, with the commissioner appointed to a five-year term by the governor-general on the advice of the prime minister after consultation with the opposition leader.

The CBB review says the information commissioner “should be appointed through measures independent of the government as far as possible, such as the Judicial Services Committee or a parliamentary select committee with representation from the opposition.

“Civil society should be included in the decision-making process, either though membership on the select committee or by the publication of a short-list of candidates to solicit public feedback.”

The definition of public authority in Section 2 of the Bill includes government departments, statutory bodies and public corporations. The CBB review recommends that this should be extended to include legislative, administrative and non-statutory bodies (such as the BESTCommission), as well as private groups that operate with substantial public funds.

Section 3 of the Bill allows a cabinet minister to exempt any “body or class of information” from disclosure, and to declare “such exceptions, adaptations or modifications” to the definition of public authority as may be considered appropriate.

The CBB review says any further exemptions or exceptions to disclosure rules should be made only by the information commissioner, not the minister. And the Bill should include “an explicit obligation” on the part of the government to enforce and uphold the stated objectives.

Although Section 34 says generally that funding for the Freedom of Information Unit “shall be payable out of money appropriated by parliament”, the CBB review recommends the stipulation of a separate and dedicated budget line item.

The Bill enables any citizen, permanent resident or company to access any non-exempt record. Exempt records are to be kept secret for a period of 30 years, but the CBB review says this shouldbe reduced to 15 years.

Exempt records include records affecting security, defence or international relations, records subject to legal privilege, records affecting the national economy or commercial affairs, and records revealing government’s deliberative processes.

The Bill requires public authorities to respond to a request for a record within 30 days, but may extend that period for a further 30 days with reasonable cause. The CBB review says “the extension should be reduced to 10 days and reasonable cause should be limited to force major events.”

And payment for records should be limited to the cost of reproduction, the CBB review says. Currently the Bill requires a fee for “preparing the record.”

Section 11 of the Bill allows a public authority to defer access to a record “if the premature release would not be in the interest of the public”. The CBB review says this clause is too vague and should be removed or narrowed.

Section 15 states that public interest considerations against disclosure shall be set out in regulations to the Act. The CBB review says these should be prescribed in the Act itself.

The review also argues that opinions, advice or recommendations prepared for cabinet or a cabinet committee should be fully disclosed, and legal advice given by or on behalf of the attorney-general should be subject to the public interest test, which aims to strike a balance between disclosure and exemption.

Section 25 of the Bill allows public authorities to withhold “any record that contains personal data” as defined by the Data Protection Act, and states that “records relating to personal data shall be exempt without limitation as to time.”

The CBB review says that “if a person is a public servant and the request is made in respect to government business, a balance should be struck between privacy and disclosure in the public interest.”

CBB is a non-partisan advocacy organization. Its mission is to promote reforms which encourage and improve accountability and transparency in all sectors of Bahamian society.

 

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