The Gavel: Secret Gov’t – Administration Ignoring Recommendations For Access To Information Amendments

Phillip Paulwell’s response to a question from opposition member Gregory Mair about when a bill to amend the Access to Information Act (ATI) will be taken to Parliament is, at the very least, unsatisfactory and should not be accepted. Paulwell, the leader of government business in the House of Representatives, said on Tuesday that a Cabinet submission is only now being prepared by the Office of the Prime Minister.

This is four years after Parliament voted for the amendments to take place, but clearly, greater access to information is not a priority of the Government.

Paulwell said, “The Office of the Prime Minister aims to have the bill amending the Access to Information Act tabled by the first quarter of 2016.”

The ATI is a framework which allows for persons to access official government documents, while promoting freedom of information.

However, certain information is not available to the public.

The Act has provisions for a review of its operations two years after it comes into force. A review was held in 2006, two years after it was brought into effect, and another was held between 2008 and 2011. The last Joint Select Committee, which considered the law, suggested far-reaching changes to the access to information regime, and the Parliament approved the report put before it.

Now, under Jamaica’s system of governance, the Cabinet decides on the country’s priorities. So despite the report having been put forward over four years ago, indicating the need for the legislation to allow greater access to information, the Cabinet has hardly budged.

NO DRAFT BILL

In May, Paulwell gave this response to Mair when he asked the question in Parliament: “Having consulted with the director of the Access to Information Unit, Office of the Prime Minister, I am informed that presently there is no draft bill to amend the Access to Information Act. The ATI Unit is currently in the process of preparing a Cabinet submission, the aim of which is to obtain Cabinet approval for the issuing of drafting instructions for the preparation of the bill to amend the Access to Information Act.”

Sandrea Falconer, the de facto information minister, has said that the bill will be tabled this year. Well, the calendar year is done and there is no bill. Parliamentarians are off for Christmas break, and when they return, it may be just for a short time as the Parliament will soon be dissolved and fresh elections held.

Falconer should tell the country on what basis she has boldly declared that the bill will be tabled this year.

Paulwell, too, must say what it is that is preventing it from being drafted. In closing the Sectoral Debate in 2014, Paulwell said that the Government was relying on assistance under the International Telecommunication Union and European Union (EU)-funded ‘Enhancing Competitiveness in the Caribbean Through the Harmonization of Information Communication Policies, Legislation and Regulatory Procedures (HIPCAR)’ Project.

“In this regard, an international expert on access to information/freedom of information reviewed the recommendations of the Joint Select Committee, and utilising the HIPCAR model law on access to public information, as well as regional and international best practices, prepared a report as well as drafting instructions to amend the Access to Information Act, and draft Access to Information Bill,” he stated.

Paulwell added that these deliverables will inform the preparation of a Cabinet submission seeking approval for the preparation of the Access to Information (Amendment) Bill by the chief parliamentary counsel.

The Government now has an obligation to say whether the assistance was sought; when it was obtained; and why it has taken four years to demonstrate it is serious about providing the people with access to information.

Certainly, one gets the feeling that the administration is not committed to making the amendments. It pretends to be serious about access to information and takes every opportunity to remind us that it was a People’s National Party administration that created the ATI regime. But it clearly does not intend to go beyond what is contained in the law now, hence the move to stonewall.

But this approach goes against the objectives of the ATI. The law seeks to preserve certain fundamental principles underlying the system of constitutional democracy, namely: governmental accountability; transparency; and public participation in national decision-making.

TRADITION OF SECRECY

The public sector in Jamaica has been characterised by a tradition of secrecy, primarily because of the Official Secrets Act, and, therefore, access to information represents a movement away from secrecy to open government.

The report, which was approved by the House of Representatives in 2011, calls for the Official Secrets Act to be repealed and replaced by an Act that would include penalties for the release of information that would put the State at risk.

It also proposed a wider application of a public-interest test to exempt documents.

“It is recommended that there be an effective public-interest override, which will help to ensure a balance between the application of exemptions and the release of information under the Act,” the report said.

Thus, for the first time at last, Cabinet documents can be released, giving the public an insight of what goes into its decision-making. The report calls for all exempt Cabinet documents to be eligible to be released into the public domain after a public-interest test is applied. This means that the benefit to the public by the release of the documents outweighs the harm of them being released.

At present, the law states that an official document is exempt from disclosure if it is (a) a Cabinet document, that is to say, it is a Cabinet submission, Cabinet note or other document created for the purpose of submission to the Cabinet for its consideration and it has been or is intended to be submitted; (b) it is a Cabinet decision, or other official record of any deliberation of the Cabinet.

Currently, any document appended to a Cabinet document that contains material of a purely factual nature or reports, studies, tests or surveys of a scientific or technical nature; or a document by which a decision of the Cabinet has been officially published can be released under the ATI.

We deserve to know more about what goes into the management or mismanagement of our affairs. There is still time for this Portia Simpson Miller administration to convince us that it is not locked into thinking which is as old as the Official Secrets Act. It should move post-haste to have the ATI amendments made or risk finding itself on the wrong side of history.