“Access to public records gives citizens the opportunity to participate in public life, help set priorities, and hold their governments accountable. A free flow of information can be an important tool for building trust between a government and its citizens. It also improves communication within government to make the public administration more efficient and more effective in delivering services to its constituency. But, perhaps most importantly, access to information is a fundamental human right and can be used to help people exercise other critical human rights, such as clean water, healthcare, and education. Access to information has been more recently recognized as an instrument that can be utilized to fight poverty in developing nations.” The Carter Center, Americas programme.
We think the quotation is not only relevant to the discussion on the topic of this week’s column but also because of The Carter Center’s role in the Jamaica’s Access to Information Act from its conception in 1998 to 2007 when the Center closed its field office in that country having helped in the Act’s implementation and review.
As promised in our previous column a fortnight ago, we turn today to consider the power of any public authority to exclude information from the ambit of the Act and the non-independence of those who are to facilitate access to information. Part V of the Bill contains some twelve clauses of the categories of documents that are exempt from the provisions of the Act. Some of these are perfectly legitimate exemptions and would meet the test of Principle 4. Limited Scope of Exceptions permitted by the International NGO ARTICLE 19. Under this principle Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests including the consideration that the harm caused by access outweighs the public interest in having the information.
Cabinet documents which cover a range of submissions, decisions and records are exempt for a period of twenty years. The same exemption rule allies to so-called internal working documents that would disclose any opinions, advice or recommendations prepared by a public officer, consultant or Adviser “in the course of or for the purpose of, the deliberative processes involved in the functions of a public authority”, and if this is considered to be contrary to the public interest. The exceptions to this exemption are mostly benign and are unlikely to help the wider cause of access to information. There is no indication in the Bill as to who decides whether the disclosure is contrary to public interest but the unsuccessful applicant is entitled to be notified of the public interest considerations on which the decision is based.
Documents that contain any information likely to prejudice the defence of the state seem to be permanently excluded from disclosure as are international relations documents. What makes these so exceptional is that all it needs is a certificate from the Minister certifying that even if such a document does exists, it is an exempt document, period, no further questions. In other words the public has no right to know that the document exists, let alone its contents.
Documents affecting legal proceedings or which are subject to legal professional privilege, or which contain information about the personal affairs of any person whether living or dead, or which contain trade secrets, or which have been obtained in confidence are all exempt under the proposed legislation. Exempt documents also include those containing any information whose disclosure would be contrary to the public interest or the financial interest of a public authority or reveal information to a competitor of a public authority which would be prejudicial to its financial interest.
A comparison of the proposed Guyana legislation with Access to Information legislation in Trinidad and Tobago and Jamaica suggests that the exemptions in Guyana are fairly in line with those of Trinidad and Tobago but much more extensive than those in Jamaica. It is not surprising then that Laura Neuman of The Carter Center who delivered the keynote address at Jamaica’s observance of International Right to Know Day in 2004 in comparing the status of various FOI initiatives in the region had this to say: “Jamaica is leading the way…. Some countries have failed, such as Belize, or are struggling like Trinidad and Tobago, but you are well on your way to reaching the benefits of a fully implemented access to information regime.”
In our view the proposed legislation goes well beyond what the international NGO ARTICLE 19 recommends as permissible exceptions. But that is not all: the proposed Act does not apply to the President although it suggests that the functions are not excluded. This is most unfortunate and suggests that in Guyana we have no understanding of what our republican status requires. Jamaica and Trinidad exempt from the application of their Acts the Governor General but the functions attaching to those offices are almost entirely ceremonial. By contrast the head of state in Guyana is an executive president with full executive powers and a cabinet that is entirely advisory.
Accordingly, neither by principle, logic or law should information or documents relating to the work of the President be exempted from the Act. Indeed, the proposal to do so in clause 4 of the Bill renders it extremely deficient at the very least.
Another major objection which Transparency Institute has to the Bill in its present form is its exclusion of everything that would have happened before the Bill becomes law. In effect the public would have no right of access to any documentation of the business which the state has purported to carry out in their names over the past twenty years and more. Yet, the Explanatory Memorandum to the Bill claims that it is in accordance with Article 146 of the Constitution and Article 19 of the (UN) Declaration of Human Rights.