On this World Press Freedom Day 2021 and as we reflect on the theme Access to Information as a Public Good, I thought it instructive to share with the public – particularly media workers – insights into a 2008 draft Freedom of Information Bill, which after 13 years remains mere words on paper.
That bill was introduced by the former Democratic Labour Party (DLP) Government of late Prime Minister David Thompson and when he died on October 23, 2010, the proposed legislation continued to make the rounds within the public service under his successor, Freundel Stuart.
All indications suggest that Thompson may have had a special interest in ensuring that a Freedom of Information Bill became law in an expeditious manner to the extent that the processes involving it were managed by his office.
He had even set October 31, 2008, as the deadline for online responses to the bill to be forwarded to the Permanent Secretary for Special Assignments or to a special government email address that was published.
Four dates were also named for town hall meetings to be held in order to provide additional opportunities for people to make inputs. The dates were October 15, October 22, October 29 and November 5 ,all in 2008.
However, he passed away the day following the second scheduled town hall meeting and just two years after coming to power on January 15, 2008.
Copies of the bill were provided, electronically and in hard copy to the various public and private sector bodies and special interests groups.
It was also accessible online and was to be made available at Post Offices islandwide.
A new Barbados Labour Party (BLP) administration took over the leadership of the country with Prime Minister Mia Mottley at the helm after a clean sweep of the polls during the May 2018 general elections and riding high on manifesto promises of transparency and accountability in government, including a Freedom of Information Act.
This government is just about two years short of ending its first term in office and that promised legislation is still to be realized.
When Attorney General Dale Marshall addressed the awards ceremony of the Barbados Association of Journalists and Media Workers (BARJAM) on November 29, 2020, he asked the media practitioners to reflect on how the public service is set up and how it operates suggesting that one would immediately recognise the magnitude of the undertaking of enacting Freedom of Information legislation.
The reason he gave was the manpower required to respond to requests for information, the timeliness of delivery, the completeness of delivery and the completeness of the record being requested.
But I hope I am wrong about concluding that media workers should not expect to see a Freedom of information Act on the statute books any time soon based on the Attorney General’s concerns about the magnitude of the undertaking.
Added to that was his declaration that the government has already started initiatives which in his words ‘offer a spill off of facilitating meaningful access’ and he said perhaps the most far-reaching is the digitizing of the records of the public service as the government moves more and more of its processes to digital media.But offering digitized access to records is not the same as legislating access.
Therefore, that 2008 bill, most of which I have read, offers much food for thought and I hereby share some of its provisions ‘for the public good’.
Within that draft law, there are provisions for prosecuting ministers of government and other public officers who contravene the proposed legislation. For example Section 56 states:
(1) Where a Ministry or prescribed authority fails or refuses without reasonable excuse to comply with the provisions of sections 15, 16 and 17, the Minister commits an offence and shall be liable on summary conviction to a fine of twenty thousand dollars.
(2) Where a Ministry or prescribed authority fails or refuses without reasonable excuse to comply with the provisions of section 22(4) or (5) or section 23, the information officer of that Ministry or prescribed authority commits an offence and shall be liable on summary conviction to a fine of three thousand dollars.
(3) Where a Ministry or prescribed authority fails or refuses to comply with section 25 or section 26, the Permanent Secretary and the information officer of that Ministry or prescribed authority each commits an offence and shall be liable on summary conviction to a fine of five thousand dollars.
(4) Where a Ministry or prescribed authority fails or refuses to comply with any other provision of this Act for which no specific penalty is provided, the person in the Ministry or prescribed authority responsible for the failure commits an offence and shall be liable on summary conviction to a fine of not less than three thousand dollars and not more than twenty thousand dollars.
57. (1) The Minister may make regulations not inconsistent with this Act prescribing all matters that by this Act are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular, making provision for or in relation to – (a) charges or fees for access to documents (including the provision of copies or transcripts) in accordance with this Act, including requiring deposits on account of such charges or fees; and (b) the officers who may give decisions on behalf of a Ministry or prescribed authority.
According to Section 8 of the bill: (1) The Governor-General, acting on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution, shall appoint an Information Commissioner for the purposes of this Act, on such terms and conditions as may be specified in the instrument of his appointment.
3) The Commissioner shall hold office for a term of five years and may be re-appointed for a further term of three years, but shall not hold office for more than two consecutive terms.
(4) The Commissioner may be removed from office by the Governor-General for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, on the recommendation of the Prime Minister and with the approval of both Houses of Parliament signified by resolution.
9. There shall be appointed, with the concurrence of the Commissioner and in accordance with the laws governing appointments to the public service, officers and employees to assist the Commissioner in the performance of the functions of the Commissioner.
10. In addition to any other functions under this Act, the functions of the Commissioner shall be – (a) to monitor and report to Parliament on the compliance by Ministries and prescribed authorities with their obligations; (b) to make recommendations for reforms of a general or specific nature to facilitate compliance with this Act; (c) to undertake or promote the training of officials of Ministries and prescribed authorities and other persons on the right to information and the effective implementation of this Act; (d) to refer to the appropriate authorities cases which reasonably disclose evidence of criminal offences; and (e) to publicize the requirements of this Act and the rights and obligations under the Act.
11 (1) In the exercise of his functions under this Act, the Commissioner shall not be subject to the direction or control of any person or authority.
14. (1) Every Ministry and prescribed authority shall designate one of its officers as an information officer and ensure that members of the public have easy access to the information officer, including his name, functions and contact details.
(2) The information officer shall, in addition to any obligations of a Ministry or prescribed authority specifically provided for in other provisions of this Act or any other law, have the following responsibilities – (a) to serve as a central contact within the Ministry or prescribed authority for receiving requests for information, for assisting persons seeking to obtain information and for receiving complaints regarding the performance of the public authority relating to the provision of information pursuant to this Act.
(b) to promote within the public authority the best possible practices in relation to record maintenance, archiving and disposal.
Section 18 of the draft law, speaks to the right of members of the public to access information from any ministry or other public entity. It says: 18. Subject to this Act, every person shall have a right to obtain access in accordance with this to a document of a Ministry or prescribed authority, other than an exempt document.
19. Where – (a) a document is open to public access, as part of a public register or otherwise, in accordance with another enactment; or (b) a document is available for purchase by the public in accordance with arrangements made by a Ministry or prescribed authority, the access to that document shall be obtained in accordance with that enactment or arrangement, as the case may be.
20. Nothing in this Act is intended to prevent or discourage Ministries and prescribed authorities from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.
21. (1) A person who wishes to obtain access to a document of a Ministry or prescribed authority shall make a request in writing to the Ministry or prescribed authority for access to the document.
(2) Subject to subsection (3), a request shall provide such information concerning the document as is reasonably necessary to enable a responsible officer of the Ministry or prescribed authority, as the case may be, to identify the document.
(3) Where a request is expressed to relate to all documents, or to all documents of a specified class, that contain information of a specified kind or relate to a specified subject-matter, compliance with the request may be refused if it would interfere unreasonably with the operations of the Ministry or prescribed authority, having regard to any difficulty that would exist in identifying, locating or collating documents containing relevant information within the filing system of the Ministry or prescribed authority.
(4) It is the duty of a Ministry or prescribed authority, where practicable, to assist a person who wishes to make a request, or has made a request that does not comply with this section or has not been directed to the appropriate Ministry or prescribed authority, to make a request in a manner that complies with this section or to direct a request to the appropriate Ministry or specified authority.
(5) Where a request in writing is made to a Ministry or prescribed authority for access to a document, the Ministry or prescribed authority, as the case may be, shall not refuse to comply with the request on the ground – (a) that the request does not comply with subsection (2); or (b) that, in the case of a request of the kind referred to in subsection (3), compliance with the request would interfere unreasonably with the operations of the Ministry or presc ibed authority, as the case may be, without first giving the applicant a reasonable opportunity of consultation with the Ministry or prescribed authority with aview to the making of a request in a form that would remove the ground for refusal.
22. (1) Where – (a) a request is made to a Ministry or prescribed authority for access to a document; and (b) the document is not in the possession of that Ministry or prescribed authority but is in the possession of another Ministry or prescribed authority or the subject matter of the document is more closely connected with the functions of another Ministry or prescribed authority than with those of the Ministry or prescribed authority to which the request is made, the Ministry or prescribed authority to which the request is made may transfer the request to the other Ministry or prescribed authority and inform the person making the request in writing accordingly and, if it is necessary to do so in order to enable the other Ministry or prescribed authority to deal with the request, send any document in its possession to the other Ministry or prescribed authority.
(2) Where a request is transferred to a Ministry or prescribed authority in accordance with this section, it shall be deemed to be a request made to that Ministry or prescribed authority and received at the time at which it was originally received.
The legal principle behind the law requires that information shall be made available unless there is good reason for withholding it. Conclusive reasons for withholding information include national security or international relations; that it was supplied by another government in confidence; maintenance of the law; personal safety; or severe economic damage.
The draft Bill may be accessed at https://www.oas.org/es/sap/dgpe/ ACCESO/docs/Barbados2008.PDF.