In today’s column, we discuss a recent experience in trying to obtain information under the Access to Information Act that the National Assembly passed the Act in September 2011 to provide citizens with reasonable access to information on government programmes and activities. We compare this experience with a recent court case in Trinidad and Tobago and offer some concluding remarks.
Access to Information Act
In November 2006, the Speaker of the Assembly, then an Opposition Member of Parliament, tabled draft legislation on access to information. However, the draft languished in the Assembly for five years, and it was not until June 2011 that the Government came up with its own version of the legislation. Because of certain concerns the Opposition had at the time, it declined to attend the meetings of the Select Committee at which the document was discussed as well as the session of the Assembly that met to vote on it.
The draft legislation became the Access to Information Act in September 2011. However, a number of stakeholders have expressed concern over its contents. The key concerns were:
● Exemption of the President from the requirements of the Act;
● Number of documents that are exempt, including Cabinet papers which would not be made public until after 20 years;
● Manner in which the Commissioner of Information is to be appointed and his/her reporting relationship; and
● Concentration of authority in the hands of the Commissioner through whom all requests for information must be channelled.
The Act did not immediately come into force since the President was required by order to prescribe a date for it to take effect. As of March 2013, the President did not issue the relevant order, and his Advisor on Governance attributed the delay to difficulties in finding a Commissioner, budgetary constraints, and the lack of information on government websites. This undue delay prompted the United States to issue the following statement:
The United States believes the U.S. Government and its citizens should work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness strengthens democracy and promotes efficiency and effectiveness in government. Transparency promotes accountability and provides information about what the U.S. Government is doing.
We encourage other governments around the world to establish legal frameworks and take appropriate action to further transparency and accountability, including creating lawful mechanisms to disclose information rapidly, in forms that the public can find and use…
We applaud the Government of Guyana for creating legislation to give its citizens the right to “access information under the control of public authorities in order to promote transparency and accountability in the working of the government and public authorities”. We encourage the Government of Guyana to put the Bill into effect and appoint a Commissioner of Information to effectively put this legislation into action.
The OAS joined the call for the legislation to be activated and stated that since 2006 it had urged the Government to pass freedom of information legislation. The International Press Institute also issued similar calls.
The Transparency Institute Guyana Inc. (TIGI) added its voice when the Advisor on Governance dismissed the 2012 Corruption Perceptions Index as a “non-empirical survey”. TIGI commented that “Perceptions aside, there are serious institutional, administrative and judicial failures which continue to facilitate widespread corruption in the country”. In calling for the strengthening and operationalisation of the Act, TIGI identified several actions the Government could take to bring about change in perceptions about the prevalence of corruption. These include the appointment of competent and independent members of the Integrity Commission and the Public Procurement Commission; promulgation of legislation on campaign financing and whistleblower protection; and the enforcement of existing laws relating to investigating and prosecuting the corrupt.
Faced with these pressures, the President eventually issued the relevant order 10 July 2013 and appointed the Commissioner on 15 July 2013.
TIGI’s Request for Information
TIGI recently highlighted its experience in trying to access information on the Government’s Integrated Financial Management System (IFMAS) that a Canadian software firm developed at a cost of US$660,000. TIGI’s concern was that the Ministry of Finance had commenced implementation of IFMAS in January 2004. However, after ten years, two of the most important modules – Purchasing and Asset & Inventory – had not yet been implemented. TIGI wanted to ascertain whether the firm had fulfilled its contractual obligations and requested a copy of the related contract. It, however, received what it described as a rude, arrogant and disrespectful response. Suffice it to state, the Commissioner did not provide the information.
The Kaieteur News contacted the Canadian firm for an explanation and it is clear that the entire package was provided to the Government for implementation. A senior officer of the firm indicated that he is unaware of any case where a government bought the system and did not use all of the modules. He further stated that IFMAS was not designed to be backed by a manual system but to replace it and that the whole purpose was to replace manual systems with automation for accountability and transparency.
The Invader’s Bay Court Case
The Ministry of Planning of Trinidad and Tobago awarded a TT$5.5 million contract to develop state land in Invader’s Bay, Port-of-Spain without the involvement of the Central Tenders Board. This action prompted the Joint Consultative Council for the Construction Industry (JCC) to request a judicial review in October 2013 after the Permanent Secretary refused JCC’s request for certain information under the Freedom of Information Act. The Permanent Secretary contended that, based on legal advice obtained, the Tenders Board was not required to be involved. The JCC then requested a copy of the legal advice, and after several delays and the threat of legal action, the Permanent Secretary responded that the information was exempted under the legislation, as it fell within legal professional privilege and its disclosure would be contrary to the public interest.
In a 28-page judgment of 14 July 14 2014, the Court ruled that the Ministry’s decision was illegal, null, void and of no effect. In handing down the decision, Justice Seepersad made some very powerful statements as regards transparency and accountability of the operations of government. These include:
● Accountability by a government for its decisions and actions must be the cornerstone of the democratic process. The proposed development of Invader’s Bay is of national concern and involves pristine and valuable real property which belong to the citizens of Trinidad and Tobago;
● There must always be transparency in any project undertaken by Govern-ment and that all attempts should be made to dispel any perception of financial impropriety or misappropriation of public funds in the carrying out of those projects;
● Recently, the issue of procurement legislation has engaged the attention of Parliament, much to the approval of the civil society. After 51 years of Independence, the society must demand transparency, and legislative moves in that direction should be welcomed and applauded;
● The public interest in having access to the requested information is far more substantial than the Ministry’s interest in attempting to maintain any perceived confidentiality in relation to the said information;
● The refusal to release such information could result in a breakdown of public trust and confidence in the Government and could create a perception that there may have been misfeasance in the tendering process; and
● Every effort ought to be made to avoid such a circumstance and if there is a valid and legally sound rationale for the adoption of the request for proposals process, then it must be in the public interest to disclose it and the rationale behind the process adopted ought not be cloaked by a veil of secrecy.
The Invader’s Bay court ruling case has important lessons for Guyana. One recalls the refusal of NICIL to provide a variety of information in relation to the Marriott Hotel and the Amaila Falls Hydroelectric Project on the grounds of confidentiality. In this regard, those in charge of the operations of government on behalf of the citizens of this country should seriously reflect on the comments of Justice Seepersad, in particular, the public interest being far more substantial than any interest in attempting to maintain any perceived confidentiality.
Although we have an Access to Information Act, except for TIGI’s request, it is not publicly known whether any person or entity has requested any information. The problem appears to be that the present Commissioner is not viewed as independent of the political directorate. He served twice as Attorney General under the present Administration; he was appointed Commissioner by the President without consultation with the Leader of the Opposition; his appointment was not by ratification by at least two-thirds of the members of the Assembly so as to enjoy the full confidence of the Legislature; and he has a reporting relationship to the President. These are some of the defects in our legislation, and we are paying the price for them.
Finally, Prime Minister Kamla Persad-Bissessar dispensed with the services of a thirteenth Minister since taking office four years ago, following the results of an audit that she had requested. Here in Guyana, we seem to be indifferent to these developments as several of our Ministers and senior public officials have committed far worse misdemeanours but still remain in position. It is time we take a lesson from our sister republic in terms of governance, transparency and accountability.