FOI bill needs more scrutiny

Wed, Oct 12th 2011, 10:39 AM

Though a strong step in the right direction, the tabled Freedom of Information (FOI) bill contains deficiencies that could derail effective implementation, according to an expert in the field.

Former legal advisor to the Ministry of Finance, Rowena Bethel, told Guardian Business that the bill, an almost verbatim copy of Cayman Islands's 2007 FOI legislation, has aspects that will not translate well into a Bahamian context.  With provisions that overlap other laws, different exemptions extended to regulators with comparable exemption requirements and other issues, Bethel said when it comes time to implement, the bill could prove a challenge.

"It's a good thing, but its only good if it works in practice," Bethel said in an interview yesterday.  "That's where I have my concerns.  We do very well for legislation on the books.  When you look at implementation - that's when you see the fissures and the holes."

While the bill would open unprecedented channels of access to the conduct of Bahamian government affairs, including policy formulation and decision making, there is information excluded from disclosure under its provisions -- a reasonable feature of FOI's the world over to protect the national interest and individual rights.  Granting access rights to not only Bahamians but the world, information exempted from disclosure under the bill is either exempted "absolutely", or on a conditionally.
There is a broad scope of information that could receive a conditional exemption.  In such cases, the implications of disclosure are weighed against the implications of non-disclosure via a "public interest test"'.

In the case of The Bahamas, that test is currently left to regulations to be issued by the minister. Many other countries have taken much of the potential wiggle-room, or opportunities for successive governments or ministers to easily change those regulations on the public interest test by including the test in the FOI Act.  Bethel believes the Bill could have included the public interest test.

"I feel there is sufficient precedent out there as to what would be considered appropriate for a public interest test that we could include that in legislation at this stage," Bethel, who is a member of the United Nations Committee of Experts on Public Administration (CEPA) and operating under the auspices of the UN Department of Economic and Social Affairs (UNDESA) said.

Under absolute exemption are categories like information held by some financial regulators but protected under their confidentiality provisions, information involved with the 'judicial function' of the courts, certain private holdings of the National Archives, and information used in strategic and operational intelligence by agencies such as the police force, defense force and customs, Bethel explained.

Bethel is also concerned that while the bill exempts certain financial regulators from disclosure of information prohibited under their confidentiality provisions, others with the same provisions have no exemption.  The Central Bank of The Bahamas, the Securities Commission and the Insurance Commission all are expressly exempted from disclosure of such confidential information, while the Inspector of Financial and Corporate Services and the Compliance Commission are not, Bethel said.

"It seems curious that this omission arises in view of the prevailing standards which require financial sector regulators to adhere to appropriate confidentiality rules in respect of clients' personal and financial affairs," Bethel said.

The Director of Cooperatives as a regulator of financial cooperatives was also not expressly exempted in regard to any confidentiality provisions it may have, according to Bethel.  She also noted that the Bahamas Development Bank under its governing Act must abide by very strong secrecy provisions not expressibly protected under the bill.

When the information requests come, and Bethel said she believes they will flood in from non-Bahamian individuals or entities, these gaps may delay the response time or result in disclosure of what may be confidential information.  Under the FOI framework, responses that include provision of the desired access must be given with 30 days of the submitting request.  There are exceptions to this spelt out in the bill.

In the case of the Cayman Islands where regulation of financial services is centralized, identification and inclusion of all regulators with similar confidentiality requirements was likely unnecessary.

Over 90 countries have introduced FOI frameworks, Bethel said.  The majority of them choose to protect the confidentiality provisions that exist in other legislation, "to ensure that all such provisions take precedence over FOI laws," according to Bethel.  She listed the US (federal), UK, Bermuda, Canada and other countries as examples.

If passed, the Bill has a July 2012 implementation target.  Bethel, the architect of the nation's suite of enabling e-commerce legislation (2003), said that date may be "ambitious".  The  Cayman Islands, with a smaller 'government administration machinery' had two years rather than nine months, she said.  Exhaustive consultation processes were also typical in many other countries, she noted.

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