James Madison, the fourth President of the United States stated in 1822 “A popular Government without popular information or the means of acquiring it is but a Prologue to a farce or tragedy; or perhaps both….. a people who mean to be their own Governor, must arm themselves with the power which knowledge gives”
Mitchell Pearlman, Executive Director of the Connecticut Freedom of Information Commission in an Article titled “The Importance of Freedom of Information at the Sub-National Level” wrote “Freedom of information laws are important. Of that there is no doubt. They are important for public accountability and the equal treatment of all people under the rule of law. They are important as an anti-corruption tool. And they are important to the legitimacy of democratically elected governments. For without access to government records citizens cannot determine whether their leaders deserve re-election or whether they should be thrown out of office for fraud or mismanagement”.
The Access to Information Bill No 10 of 2011 is an important piece of legislation. Not only because it creates an obligation to provide information where once there was no such obligation statutorily recognized, but because it signals a recognition by government of the legitimacy of the view that information sharing with its citizenry is obligatory in a democracy. Governments are notorious for holding close to them that which exposes them to scrutiny and criticism.
Transparency Institute welcomes the enactment of legislation which offers access to information for all citizens. This expression of optimism is unfortunately tempered with more than a pinch of salt since our analysis indicates that there is a great deal more wrong with the Bill than right with it. It is not enough to pay mere lip service to the movement toward greater access; the legislature must make meaningful change.
What’s right with the Bill-
It provides an enabling environment for access to information held by public authorities.
What’s wrong with it?
● The proposed Act does not apply to information already in existence in the Government records.
● It creates a bureaucratic and unhelpful system of accessing information.
● Too much discretion reposes in the Authority to exclude information from the ambit of the proposed Act.
● The bodies constituted for ensuring disclosure will not be independent but will be subject to Government
Although section 13 of the Bill requires every public authority to maintain its records duly catalogued in a manner which facilitates the right of access to information under the proposed Act, section 14(4) provides: “Nothing in this Act shall be construed as compelling a public authority to disclose or make available any information or record created before the commencement of this Act.”
This means that on the passing of the Act Guyanese will have to pay for the salary of a Commissioner of Information appointed by the President and the salary of his support staff and for the expense of maintaining the Commission of Information. However at the moment the Act comes into effect there will not be a single record or document kept by a Public Authority to which the Commissioner or the Public has access. The cupboard will be bare. By excluding past records and documents the Government has excluded from scrutiny any past misdeeds or acts of corruption. All skeletons can comfortably remain in their closets.
According to the Commonwealth Human Rights Initiative, an international NGO mandated to ensure the practical realization of human rights in countries of the Commonwealth, Freedom of Information legislation should require Govern-ments to create and maintain records management systems that meets public needs and include clear and uncomplicated procedures that ensure quick responses at affordable fees.
Under section 13 of the Bill although it is contemplated that public authorities create access to their records the obligation applies only to “records that are appropriate” and “subject to availability of resources” further, the authorities’ obligation applies only “as far as practicable”. The ideal is the creation of a thorough and complete database in respect of all records in existence which are currently hidden within the vaults of each public authority. The reality created by this Bill is a lukewarm “endeavour” of the public authority “of its volition as far as practicable” and “subject to the availability of resources” to enable access to records to which the authority feels access should be had. It would be difficult to conceive an obligation more ineffectually imposed.
Where the disclosure obligation imposed on the public authority directly under section 13 does not produce the desired result of making information available as it probably will not recourse must be had to the Commissioner. A person who wishes to obtain access to a document must complete a form, either in writing or electronically which must identify the specific document or provide sufficient detail to enable the Commissioner to identify the document. The Commissioner has 60 days to approve or deny the request and may extend that period if he gives the applicant reasons for so doing. A fee may be charged for providing a document.
Provision of a document may be deferred for any of several reasons including the Commissioner’s opinion as to public interest. The Commissioner can refuse access to documents where the work involved would unreasonably divert the resources of the public authority from its other operations and may grant access to edited copies of documents. There is a right of appeal from the decision of the Commissioner refusing access to information, to the High Court.
This cumbersome procedure creates more obstacles and impediments than is necessary. Without an indexed database or system of access any real enquiry or investigation by a member of the public is farcical. Joe Public cannot tell the Commissioner what document number they need to see. Indeed even our trained media would have difficulty following bureaucratic and stifling procedures set out in the Bill. The intention here is not to disclose but to obstruct.
In the next article the Institute will consider the power of the Authority to exclude information from the ambit of the Act and the non- independence of those who are to facilitate access to information.