A deeply flawed Access to Information bill

For 24 years while in opposition, the PPP railed against rigged elections, human rights abuses, corruption and lack of transparency in government. Yet, it has taken it 19 years while in government to bring Access to Information legislation to Parliament with only a few months of four consecutive terms in office to go. This is just a very thin slice of the hypocrisy and duplicity that has characterized PPP/C governance and in this particular case it presents in sharp relief a government unwilling to allow citizens to enquire into the business of the state and to participate in decision-making.

Nineteen years later it is unclear when this law will be enacted but there should be no mistaking its importance. An access to information law properly implemented and in an enabling environment puts government and public authorities where they should really be; in the service of people and primed to account for their actions by virtue of the release of information which properly belongs in the public domain.

Since being tabled, the bill has been sent to a select committee and submissions have been invited from the public. As presently constructed, the bill has several serious flaws.

Perhaps the most irredeemable is the manner of appointment of the Commissioner of Information and the concentration of duties and power in this individual.
Clause 5 says that (1) “The President shall appoint a Commissioner of Information who shall be a person of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. (2) The Commis-sioner of Information shall be a clearing house for processing requests and shall discharge the functions assigned to him under this act.

(3) The Commissioner of Information shall be provided with requisite staffing and budgetary support in order to discharge his functions under this Act.

(4) The Minister shall provide the Commissioner of Information with such officers and employees as may be necessary for the efficient discharge of the functions of the Commissioner under this Act, and the salaries and allowances payable to, and the other terms and conditions of service of, the officers and employees appointed for the purpose of this Act shall be such as may be determined by the Minister”.

The proposed appointment by the President offends democratic norms particularly in the framework of an executive presidency with few checks and balances and open to abuse as has been witnessed in the 30 years of its existence. Such powers of appointment are relished by President Jagdeo and he has not been shy about exercising them to further entrench his control over various sectors.  In several cases these appointments have been unmerited and divisive. The appointment of a commissioner by which-ever President is in place would also immediately politicize the process and put the candidate at a disadvantage in attempts to be evenhanded. The Commissioner of Information, if there is to be one, should not be beholden to the President for his preferment. Article 19, the international freedom of information lobby group proposes that a Commis-sioner of Information should ideally be appointed by the Head of State after nomination by two-thirds of the legislature. And this only after a process that sees participation of the public in the nomination process, transparency and openness and the publication of a shortlist of the candidates. This is the ideal to strive for but in the present circumstances the best that can be hoped for is an appointment after agreement by the Leader of the Government Business in the House and the Leader of the Opposition on who the best candidate is. This would at least assure the public that the candidate enjoys the confidence of both sides of the House.

Clause 5(2) continues the obsession that the PPP/C has with control of information. By making the Commissioner the clearing house for all information, the bill presents a natural impediment to the efficient operability of the Act and allows a stalling whenever sensitive requests are made. By making the Commissioner the hub, the President and his government are also ensuring total control over the information to be released.

Both the Jamaican and Trinidadian access to information models cater for a multiplicity of ATI officers who are schooled on the law and release the required information in the designated public authorities. Difficult requests then go higher up but by spreading the dissemination responsibility around, these two jurisdictions are living up to the objective of empowering public authorities to interact with communities. It also vastly reduces the prospect of grandstanding by an access to information czar.

Clause 5(3) is typically vague about the basis for budgetary and other support and this could lead to the executive exercising financial coercive pressure as many believe this government is keen to do with the Guyana Elections Commission. A government controlling finances for constitutional and watchdog bodies will be easily tempted to improperly exert itself on them.

Clause 5(4) leaves the Commissioner of Information at the mercy of the minister as it relates to salaries and allowances etc. These issues are best left to a bipartisan parliamentary committee.

The usual zone of contention for ATI laws is always located in the number of documents to be exempted from public access. From the outset, the government is determined to rule out Cabinet documents from being available to the public for 20 years. This seems excessive. Subject to the usual standards of exclusion such as state security and legal sensitivities, Cabinet documents should be available to the public so that there can be a greater understanding of the basis upon which important decisions are taken by the government.

The requirement for public authorities to have their records in good order to facilitate requests has not been addressed in the bill. This will be a major undertaking given the lackadaisical approach among public authorities to record keeping. How will the government publicize the work of the ATI law and developments related to it? Incredibly, as set out in the bill, it seems that the government believes that publishing the information in the Official Gazette and one newspaper (most likely the state-owned one) will suffice.  These are some of the areas that must be altered if ATI is not to be a farce.

There is another important point that should be made. In a recent interview with CNN International, Carl Bernstein of Watergate fame made the point that Rupert Murdoch’s present media worries had their genesis in a culture that egged on journalists to go from scoop to scoop, excusive to exclusive, salacious to more salacious without a concern about the demolishing of ethics or the damage caused to people.

The point is applicable here. This government and the others that have occupied the Office of the President for the last 19 years have an innate revulsion to the release of information which could put them in disfavour. Their immediate instinct is to deny the information exists and to make certain that it doesn’t get out. It has happened with the polar beer investigation, the Supenaam stelling collapse, the Buddy’s Hotel deal, Amaila Falls, the Marriott Hotel and myriad others.

Which Commissioner of Information or officer operating under this Act will lift a finger to requite a request from the public on one of the controversial areas or for example how much money the state has spent on trips for the PPP presidential candidate Mr Donald Ramotar? Given the general information lockdown and disdain for the public right to know, this model would not thrive in the hostile environment that the government has sown.

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