Freedom of information
March 17, 2000
"A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives." - James Madison (US president 1808-1816)
Jamaica is currently pursuing the enactment of Freedom of Information legislation. A draft Bill, which is now before the Jamaica Parliament, is expected to come to a vote before the end of this year. A committee which was tasked with drafting the act in early 1995, presented its report and it was tabled in Parliament in June 1996. The Jamaican Cabinet issued its submissions on the report in October 1998 and drafting instructions were issued by Prime Minister P.J. Patterson in November of the same year.
Five years have gone by since the task was taken up and some Jamaicans had begun to question whether the Act would ever see the light of day. However, Jamaicans recently had reason to be gratified by their government's responsiveness.
Having recognised that the chief users of a Freedom of Information Act would be the media, in news stories as well as in responses to letters to the editor, the Media Association of Jamaica (MAJ) convened a Freedom of Information Seminar on February 22. The topics slated for discussion were: the components of a good Freedom of Information Act, how the media and public would make use of such an Act and the value of this legislation in fighting corruption. The MAJ had sought to have the government's perspective on the proposed law and had invited Senator Maxine Henry-Wilson, then a minister without portfolio, who was the government's 'pointman' on information. Senator Henry-Wilson's appointment as Minister of Information was announced the day before the seminar.
In her presentation at the seminar, the newly-appointed minister was frank as regards what could be achieved. She said that Jamaica, like every other Caribbean nation, had long nurtured a culture of secrecy. In fact, Jamaica has two pieces of legislation which subscribe to this culture--an Official Secrets Act, which the minister said is to be repealed, and an Archives Act, which is to be amended.
She acknowledged that the current draft was far from perfect and urged full public participation in arriving at a final product that was useful and workable. The MAJ undertook to submit its recommendations on the draft to the government for consideration.
In the Caribbean only two other countries have such legislation--Belize and Trinidad and Tobago. The Jamaican draft has not taken these into consideration. Instead, it has drawn heavily on the experiences of Australia, New Zealand, the United States, Canada and the United Kingdom. The UK and Scottish laws are expected to be passed shortly. Ireland has already passed legislation and Costa Rica has freedom of information tenets enshrined in its Constitution.
Strong freedom of information legislation establishes a presumption that government records are accessible to the people. It shifts the burden of proof on issues such as good governance, bribery, corruption and party political finance from the individual to the government. It replaces the "need to know" standard with a "right to know" doctrine and asks that government justify the need for secrecy. It provides administrative and judicial remedies for those denied access to records.
A solid freedom of information act would also set standards for determining which records may be disclosed and which withheld. It would be written in clear language, set direct costs/fees for processing requests which are not prohibitive, include a clause for waiver of fees in special circumstances and create a position for a Commissioner, to whom appeals can be made if there is non-compliance or excessive delays in responding to requests. It would also monitor government's record keeping, accountability and disclosure practices. The intrusion into personal privacy would not be allowed and certain records which contain classified information would be exempt in the interest of national security or foreign policy and the pursuance of a criminal investigation. However, such exemptions would be as narrow as possible so as not to make the law ineffectual.
It is time for the government to consider seriously a move in this direction. In countries where it exists Freedom of Information legislation fosters democracy, it has reduced the practice of contracts being awarded to friends of the government, bribery in the police and customs departments and the appointment of party card holders to key public service posts.