Freedom of Information/Access to Information

In our previous column on June 27, 2011 we summarized the principles, recommended by the international NGO known as ARTICLE 19, which should be embodied in Freedom of Information legislation. ARTICLE 19 has also published a model Freedom of Information Act incorporating those principles, making it easy for governments to adapt and introduce such legislation in their own countries, subject to their own constitutional imperatives, legal frameworks and drafting styles.

In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59(I) stating “Freedom of information (FOI) is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.” FOI has also been enshrined as a corollary of freedom of expression in other major international instruments, including the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969). To the credit of the framers of our Guyana constitution the individual’s right to freedom of expression has been recognized in Article 146 of the Guyana Constitution as one of the fundamental rights.

That imperative is inherent in Article 13 of the Constitution dealing with the objective of our political system – the establishment of an “inclusionary democracy [which provides] increasing opportunities for the participation of citizens, and their organisations in the management and decision making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.”

The Guyana Government has signed on to a number of international conventions which uphold similar ideals to those of the Articles and require it to enact laws extending the right of citizens and others to information that will allow them to participate fully in decision-making. If we as citizens do not have free access to information and ideas and are not able to express our views freely, then the very objectives of our political system will have been lost. Freedom of expression is thus not only important for our individual dignity but also to participation, accountability and democracy.

The introduction of the Access to Information Bill No. 10 can to be seen as intending to give effect to that right while meeting the obligations which we have undertaken under international treaties. Transparency Institute of Guyana Inc. therefore welcomes the tabling of the Bill. While we are concerned that it has taken more than fourteen years for the Government to introduce the draft legislation, we have greater concern about the late stage at which this has been done, just months before the National Assembly ends its current life and all unfinished business ends with it. While we welcome the fact that the Bill has been referred to a Select Committee, given the demands on the resources of the National Assembly, it is hard to see this Bill made into law before the next elections which means that it will have to take its place in the queue for the next Parliament.

TIGI has already begun consultations on the Bill and will be writing the National Assembly seeking an opportunity to appear before the Select Committee to offer our comments and recommendations on it. We will also be holding in early September our own formal consultation on the Bill in the form of a public Seminar to which we will invite key stakeholders and political leaders. At that Seminar TIGI will present its formal and detailed response to the Bill and our recommendations thereon which will be refined to take account of the views and recommendations coming out of the Seminar.

Meanwhile however we think it appropriate to offer some preliminary comments on the Bill against the background of the principles set out in ARTICLE 19. Just to recap, the principles are:

* The legislation should be guided by the principle of maximum disclosure.

* Public bodies should be under an obligation to publish key information.

* Public bodies should actively promote open government.

* Exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests.

* Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available. The process should involve three different levels: within the public body; appeals to an independent administrative body; and appeals to the courts.

* Individuals should not be deterred from making requests for information by excessive costs.

* There is a presumption that all meetings of governing bodies are open to the public.

* Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed.

* Individuals who release information on wrongdoing – whistleblowers – must be protected.

Our Bill

Our examination of Bill No.10 has led us to the unhappy conclusion that it does not follow the model recommended by ARTICLE 19 nor does it meet the ideals which are reflected in that model. It is not without significance that our Bill is titled Access to Information and not Freedom of Information, a difference that may be more substantial than semantic. The Explanatory Memorandum to the Bill speaks of access to information under the control of public authorities in order to promote transparency and accountability. Clause 3 of the Bill seems to particularize that right to “matters affecting members of the public”, raising the possibility that the courts if or when called upon to define the obligations which arise under the Act and the corresponding rights conferred on the individual may take a more narrow view than may be desirable.

Similarly, while the model Act recommended by ARTICLE 19 has the sweeping objective “maximum disclosure of information in the public interest, to guarantee the right of everyone to access information, and to provide for effective mechanisms to secure that right”, Bill No. 10 has as its objective the establishment of a “practical regime of right to information for persons to secure access to information…..” Some may see the difference as one of words and semantics only but let us remember that the only tool available to the courts in defining the rights and obligations created are those very words in the Act by which Parliament has expressed its intention. Those words reflect Government’s policy that in Guyana the Freedom of Expression should be restricted much more narrowly than the ideals fostered in truly democratic societies.

To be continued

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