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Ryan Pinder Contribution on The Freedom of Information Bill 2012‏
Source: The Bahamas Weekly, http://www.thebahamasweekly.com/publish/bahamian-politics/Ryan_Pinder_Contribution_on_The_Freedom_of_Information_Bill_201220915.shtml
Source Date: Monday, March 19, 2012
Focus: ICT for MDGs, Citizen Engagement
Country: Bahamas
Created: Mar 19, 2012

Introduction

Mr. Speaker …

Today I am honoured to rise on behalf of the good people of the Elizabeth Constituency.  I would like to thank my constituents for having the confidence in me to speak on their behalf and I look forward to representing their interests in this honourable place for many years to come.  Today we debate a The Freedom of Information Bill, a Bill, which in theory, would allow citizens of the Bahamas to request certain government information.  This is a Bill whose intent is to be a tool for the citizens of the Bahamas to provide checks and oversights on the Government.  This is certainly needed with the reckless way this Free National Movement party has governed this country in the last 5 years.  This Government brings this legislation before us to try to hold themselves out as the beacon of transparency, however, their actions speak otherwise.  A non-political colleague of mine, speaking in the context of this FNM Government and this legislation, stated “[under this Government] the word "transparency" is spelt OPAQUE, so its near nigh impossible to figure out what is being passed in HOA unless someone believes they are going to get brownie points from it”. 

Transparency in the Roadworks

One of the most glaring examples of a lack of transparency in actions, rather than in words, is the manner in which this Government conducted itself with respect to the New Providence Road Improvement Project.  My colleagues had requested for years in this honourable place a copy of the road contract and related documents, never having been produced.  The first time that the contract was produced was when the Public Accounts Committee requested it.  The Public Accounts Committee identified numerous instances where there was a lack of transparency. 

One example of this was the auditor general reports on the loans taken out to finance the project.  The auditor general had official reports that identified patterns of non-compliance with loan agreement requirements, identified a lack of internal controls.  The auditor general is an independent party responsible or auditing the spending of the Bahamian people’s money, and this Government failed to be transparent as they now claim they are, failed to show the Bahamian people the findings of the auditor general reports on the road project. 

What is most alarming is this Government’s failed transparency on how the Bahamian people’s money is being spent on the road project.  In November of last year, Jose Cartelone, the contractor on the road project, testified to the Public Accounts Committee that project was significantly over budget.  The project that was contracted for a revised $113 million would not cost $154 million to complete.  This was the first time that there was any disclosure that the project was over budget, and it came from the contractor, not the Government.  A complete lack of transparency with this Government. 

What is more alarming is that just a few months later, the Prime Minister in this place discloses that the new cost to complete the road project is now an alarming $206 million, some $93 million over budget, and $52 million more than the contractor testified just a few months prior what it would cost to complete.  The Prime Minister, however, never disclosed the reasoning for this $52 million increase over what the contractor had testified to, the Prime Minister was not transparent with how the Bahamian people’s money was being spent.  On behalf of the Bahamian people, I demand a full report on why the contractor and the Government have different numbers on cost to completion, and who is receiving this money. 

In my opinion, the IDB also recognized the lack of transparency in this Government in handling the roadwork project when they made some observations in their recent report.  The report has stated that “the Bank will make available to the public the relevant Project documents.”  The Bank presumably would not be obliged to do this if the Government were compliant in providing the public with all Project documents. 

The Government has an obligation to provide as much detail and transparency on this project as they can, including the reasoning behind the sudden escalation in cost overruns, what are these attributable to and who will they ultimately be paid to.  This is the Bahamian people’s money, their inconvenience, and their concern. 

Transparency in Governance
We are also witnessing a lack of transparency in Governance.  By this time, as is customary, the Government should have tabled and we should have debated a mid-term budget.  This is an exercise of financial transparency on the state of affairs of the country, and a mid-year report to the Bahamian people on how their money is being spent and collected. 

This year, this so called Government of transparency, has chosen to not proceed with this important exercise of financial accountability and transparency.  They give the excuse that the election is near.  At this point, more than two months will have passed between when the mid-term budget should have been presented to the Bahamian people, and when elections will be held.  This is no excuse – the failure to account to the Bahamian people out of fear that their failures will be exposed is evidence of failed governance.  This legislation is meant to be a tool for the public to hold a government accountable, yet through the failure to bring a mid-term budget, this FNM Government fails the test of transparency and accountability. 

As mentioned by my colleague from Fox Hill, this Government proclaims transparency, proclaims to be the Government in the Sunshine, however, by their actions, they clearly have been just the opposite. 

Freedom of Information Bill
In theory, the objectives and issues of this Bill transcends political parties, it will be vitally important to make sure it delivers on its intended purpose once passed into law. It is unfortunate that a formal consultation process did not proceed its tabling in Parliament, but this seems to be the norm with this Government, legislate and then consult, maybe.  This legislation is based, almost entirely on the Cayman Islands Freedom of Information Law was passed in 2007 and was brought into force in January 2009.  Since it has been almost directly copied, there are concerns that it might not be compatible, or fit properly within the context of our laws here in the Bahamas. 

This legislation gives Bahamian citizens and residents the general right to access of information held by the central government and its agencies and other designated entities, subject to certain defined exceptions.  This version of the legislation is different from the version first tabled in this honourable place.  The substantive changes in this current legislation are that the Act will come into force on a date to be appointed by the Minister instead of 1st July 2012; only Bahamian citizens & residents will have the right of access (clause 6); the Information Commissioner will now be the Data Protection Commissioner (clause 35) & the Official Secrets Act will override the Freedom Of Information Act (clause 55 (4)).

Necessary Mechanism – A question arises as to the mechanisms for each respective agency for the processing of the necessary requests for information.  It would appear that each agency would require an information officer, or internal procedure to properly respond to requests.  The ease of access and processing is fundamental to the effectiveness of this legislation.  The Bill provides that a response must be made within 30 days, emphasizing the importance of an efficient information review and processing system.

Public Interest Exemption  - As mentioned, there are certain exemptions to providing information.  One of these is information that should not be disclosed in the “public interest”.  What is in the “public interest” is not defined in the legislation, but is to be defined by the Minister in the regulations.  In my opinion, the “public interest” exemption should be defined in the legislation, demonstrating more objectivity.  By allowing it in the domain of the Minister, it allows for politically motivated disclosure and definition of what is in the “public interest”. 

Potential Conflict with Current Law  - It is important to ensure that this legislation is consistent with existing legislation, and Government policy with respect to certain of our important industries.  An example would be the discretionary disclosure of information on a living or dead person.  There is a question as to whether this is in contravention of the Data Protection (Privacy of Personal Information) Act.  It is important that this legislation be drafted to be consistent with our existing laws that are in place for the protection of Bahamians, certainly public consultation in this regard would have assisted with ensuring there is no conflict.

Likewise, clause 55(4) of this legislation speaks to potential conflicts when it states “access rule under the Official Secrets Act shall apply in contravention of this Act”.  The Official Secrets Act gives a broad prohibition, it implies that government information can only be disclosed to authorized persons or persons where it is in the State’s interest to make disclosure to such persons.  There is a question as to what “official documents” include, what is the scope of information that the Official Secrets Act covers?  The FOI Bill 2012 effectively removes information covered by the Official Secrets Act from the ambit of the FOI Bill altogether, does the clause merely preserve the status quo?  This reconciliation, or lack thereof, makes it unclear exactly what will and will not be produced under this legislation.

Whistleblower Protections  - It is important to provide protections to those persons who inform officials of improprieties, known as whistleblowers.  This legislation in my opinion does not go far enough in its protections, it just provides for the legal protection for whistleblowers.  The legislation should set forth penalties and outline the protection mechanisms.  This is of particular importance in a country such as the Bahamas, with a small population, where everyone seems to either be related, or know everyone else.  A well defined and structure protection regime is necessarily in the legislation.

Conclusion
It is unclear how effective this Bill will be in providing actual freedom of information to Bahamians.  When the provision exempting information subject to the Official Secrets Act is taken together with all the possible avenues for the government (through ministers, permanent secretaries, heads of other public authorities and Information managers) to prohibit access to information (under the various exemptions), it certainly raises the question as to what exactly will change when the FOI Bill 2012 becomes law.

Something as important as the Freedom of Information Bill should have been subject of widespread consultation, evaluation and analysis.  To bring this legislation here without public input and analysis is just wrong, this is a fundamentally important piece of legislation, it should be brought and analyzed in the correct way. 

Furthermore, it does not seem that this FNM Government has put in the necessary electronic oversight to ensure any Freedom of Information legislation is properly implemented.  I am advised The Bahamas eGovernment ranking in the UN eGovernment survey for 2012 remained at no. 65 in the world and no. 3 in the Caribbean region (same as its 2010 ranking). The Bahamas is 79th in the world in relation to online service delivery and remains below the world average in this category. FOI cannot work effectively without a proper eGovernment agenda, dealing with transformation and modernisation of government business processes.  We have heard much about this Government’s eGovernment agenda, however, the rankings do not indicate its effectiveness.

We support the Freedom of Information for Bahamians, we support the ability for the Bahamian public to hold their Government accountable.  We also support the proper implementation of the legislation, with the proper mechanisms and consistent with the other laws and policies of the country.  It seems that this Bill was merely copied from the Cayman Islands legislation, without consultation, and without consideration on how it may conflict or work with the existing laws and policies of the Bahamas.  A friend once said “access to public information is an important hallmark of a mature democracy”, we should treat this legislation with the importance it demands.

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