Contrary to SN’s assessment the Access to Information Bill is a progressive piece of legislation

Dear Editor,

Stabroek News’ recent “assessment” of the Government of Guyana’s Access to Information Bill 2011, published in its editorial column on July 18, 2011 entitled ‘A deeply flawed Access to Information Bill,’ unpersuasively and unproductively seeks to cast doubt on the meritorious, sincere, good-faith efforts of our government to secure for our nation, the globally recognized fundamental right of access to information. Any casual review of this editorial will reveal that it is largely an attempt of the malevolent promulgation of obviously unsubstantiated falsehoods.

While this progressive piece of legislation has not been laid in Parliament until 2011, it must be recalled that our current government’s administration of Guyana, beginning in 1992, signalled a shift from administrative dictatorship and a return to democracy by the implementation of a unique inclusive governance model subsequent to extensive constitutional reform. And so, it has not taken our government 19 years to bring this Access to Information legislation, but rather, for 19 years, our government has been plagued with the daunting task of reconstructing a country left damaged by the previous administration. Moreover, it is somewhat laughable that the author of this editorial would rely on an administrative durational argument of 19 years albeit there was a lack of any analogous legislation during the previous 30 year stranglehold of our nation.

Oddly enough, this editorial begins by noting that “for 24 years while in opposition, the PPP railed against rigged elections, human rights abuses, corruption and lack of transparency in government.” Strategically speaking, this is an obviously imprudent manoeuvre which quashes and nullifies most, if not all the credibility of the editorial’s facetious assertions. We can disregard the editorial’s durational error of “24 years” as mere absent-mindedness. However, we should applaud the editorial’s own acceptance and recognition of the historical actualities of rigged elections, human rights abuses, corruption and lack of transparency during the PPP’s oppositional years. At least the author of this editorial, while clearly antagonistic of our current government’s administration, does not attempt to broadly disavow any and all knowledge of such well-documented grave injustices, unlike several other ignominious dissenters who apparently seem content in running such a fool’s errand.

The editorial then goes on to claim that the Access to Information legislation should put the government and public authorities “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.” It is generally true that at its core, the public policy and legislative purpose underlying this Act is a concern with principle democratic tenets of government accountability and transparency. However, this claim is unreasonably and speciously broad in that it fails to take into account exemptions and non-applicable competing concerns which are narrowly tailored to efficiently and effectively balance the right to access information against compelling and overriding justifications justifying denial of access.

Much reproach is directed against the appointment process by the President of the Commissioner of Information pursuant to Section 5(1). Although presidential appointment does touch and concern democratic tenets, the claim that such automatically offends notions of checks and balances and separation of powers is frivolous and misplaced. Firstly, presidential appointment of such a position falls squarely within the ambit of our constitution and is a legitimately exercisable executive function.  Next, the appointment criteria are sufficiently objective to mitigate concerns of arbitrary or unfettered executive discretion, since the president must appoint as commissioner “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.” These qualifications and characteristics cannot be claimed to be undesirable or deficient since they epitomize those which should be embodied in the commissioner, who is responsible for the effective implementation and operation of the Act. While the president may remove the commissioner, it is a stretch to suggest that the commissioner is thereby beholden to the president, since removal may be had only pursuant to specifically enumerated reasons laid out in Section 6(1). Moreover, the author of this editorial should take into account that in accordance with Section 43, a person aggrieved by the commissioner may apply to the High Court for judicial review. This is a noble effort on the part of our government to temper unrestrained preference on the commissioner’s part, which is ultimately in furtherance of the same democratic notions the editorial claims are offended. It is also incongruous to claim that “such powers of appointment are relished by President Jagdeo,” since the constitution clearly requires meaningful consultation with the leader of the opposition for appointed members of the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission, the Police Service Commission, and the Human Rights Commission, among others, which promotes inclusive governance, transparency and accountability.

To assert that the concentration of duties and power in the commissioner is an “irredeemable” flaw runs afoul of the realization that our government’s creation of a commissioner vested with such powers is in furtherance of the efficient implementation and regulation of this Act, and is a unique innovation in this region of the world. Rather than utilizing an ombudsman as in Belize, Trinidad and Jamaica, our government has more effectively anticipated problematic instances which accompany the right to access information and has reasonably counterbalanced these by providing for a more central role for the commissioner. Also, as aforementioned, a person aggrieved by the commissioner may seek judicial relief. Undeniably, our government has a compelling and overriding interest in maximizing efficiency and effectively guaranteeing the right to access information by vesting the commissioner with powers necessary to discharge the functions assigned to him under this Act.

The editorial then makes a claim which itself is wholly incapable of reconciliation, that “by making the Commissioner the clearing house for all information, the bill presents a natural impediment to the efficient operability of the Act.” A “clearing house” mechanism in fact, does entirely the opposite, since by definition, it serves as a central agency for the collection, classification, and distribution of information, thereby buttressing expediency and stimulating efficiency by serving as an intermediate facilitator for the access to information. By making the commissioner the hub, our government is not exercising control over information, but rather, is reasonably and legitimately anticipating likely scenarios in which rurally situated persons do not know where or how to access information under this Act. Rather than forcing such persons to scamper about trying to figure out where to go, our government has made a respectable decision to alleviate these concerns. It seems that this editorial’s author disregards or largely ignores Guyanese other than those in Georgetown, who would be more easily capable of figuring out where to go. In contrast, our government justifiably takes into consideration the totality of the circumstances by reasonably and legitimately anticipating likely scenarios, ie, geographic isolation, which would likely impede the efficient accessibility of information under this Act.
Section 5(3) is imprecise about the commissioner’s budgetary and other support; however, this imprecision is justifiable in the context of the right which this Act serves to secure. Because the functions, duties and responsibilities of both the commissioner and public authorities present a comprehensive and widespread scope, and introduce novel requirements non-existent in most contemporary legislation, such as the onus to make information electronically available, as well as the practical burdens and difficulties in securing access to information, budgetary and other support is not ripe for quantifiable calculation. In keeping with similarly situated legislation around the world, our government has reasonably and judiciously opted to choose language reflective of these considerations, in stating that the commissioner will be “provided with requisite staffing and budgetary support in order to discharge his functions.”

Section 5(4) states that “the Minister shall provide the Commissioner… 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… of, the officers and employees.” This is an essential check on the commissioner’s extensive powers and serves to balance the right to access information against competing public policy considerations which the relevant minister has an obligation to safeguard.

Our government’s exempted documents are narrowly tailored to efficiently balance the right to access information against compelling and overriding concerns justifying their exemption and are consistent with and indicative of contemporary analogous legislation globally. Moreover, in most instances, they are more comprehensive, definite, expansive, practical and efficient by providing for a wider range of exemptions, restricting the scope of exemption in the interest of fairness, mitigating likely ambiguity and anticipating reasonably foreseeable problematic concerns, etc. In a similar vein, “Cabinet Documents,” which are exempt in every piece of comparable legislation, are exempt in Guyana for 20 years. This period of exemption is not excessively restrictive or burdensome, but rather, is narrowly tailored to guard against access to documents which are particularly politically sensitive to our government’s efficient operation and discharge of its functions, which itself is a compelling interest. Moreover, it is clear that an exemption for 20 years herein is an intelligible choice among several other meaningful alternatives, especially as compared with other jurisdictions. For instance, in Belize, Cabinet documents are essentially permanently exempted since there is no reference as to when they can be accessed. In Jamaica, there is no time period given for the release of Cabinet documents. Accordingly, it cannot be said that our government’s choice of 20 years is unduly oppressive or disproportionate since it is clearly less restrictive than both Belize and Jamaica.

To suggest that “the requirement for public authorities to have their records in good order to facilitate requests has not been addressed in the bill” is purely and plainly erroneous and typifies the wanton and reckless disregard taken by anti-government proponents to sling dirt on each sincere, good-faith effort on the part of our government to eliminate the past vestiges of administrative dictatorship. It is permissible to surmise that the author of this editorial has not read or analyzed the Act in its entirety, but rather, has merely picked bits and pieces to criticize out of context and/or without considering the totality of the circumstances. Section 13 in general provides several facilitation mechanisms and Subsection 1 in particular states that “every public authority shall, as far as practicable, maintain its records duly catalogued, classified and indexed in a manner and form which facilitates the right of access… and ensure that all records… are computerized within a reasonable time.” The editorial’s author would be well served to reread the Act before making fallacious and deceptive claims and objections.

Indeed, no piece of legislation is without its imperfections and at no point can every concerned party be wholly pleased with its entire contents. Ultimately, however, what may be said is that this Act is a progressive piece of legislation enacted by our current government, which conforms to and builds upon universally accepted standards governing the right to access information and which efficiently balances that right against competing public policy considerations which justify its restraint.

Yours faithfully,
Cheddi Berret Jagan II

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