Govt’s revised FOIA ‘fails to meet international standards’

.Digital.Disclosure. / ALISON LOWE

A Canadian expert on the right to information laws worldwide has written to the Bahamian government to express concern that its revised Freedom of Information Act still fails to meet international human rights standards.

Recognising that the updated legislation has undergone some minor amendments over the “deeply flawed” 2012 legislation, Toby Mendel, Executive Director of the Centre for Law and Democracy (CLD) states that in other areas the law has been further weakened as a tool to promote transparency and accountability.

“Although the new Bill has some modest improvements over the 2012 Bill, the main problems have not been addressed and it still fails to meet international standards in many respects,” states the FOI expert.

The Centre for Law and Democracy is based in Halifax, Canada.

As its Executive Director Mendel welcomed positive amendments to the law while making clear the centre’s continued concern over the majority of its provisions and government inaction over its implementation in a letter to Jerome Fitzgerald, Minister of Education. Fitzgerald has ministerial responsibility for the Act.

The letter was sent a week after the government released an updated version of the 2012 FOIA for public consultation on May 18.

The letter was released along with an assessment of the 2015 Bill by the Centre using its internationally-renowned right to information (RTI) rating. The rating exercise sees the Centre go through the legislation provision-by-provision, scoring each for the extent to which it meets a global standard. The centre has made this detailed rating exercise available to the government (click below to view the rating).

The 2015 version of the FOIA scores 93 points out of a possible 150, while the 2012 version scored 88. The new legislation continues to score particularly poorly in the areas of “scope” and “exceptions and refusals”.

“The Freedom of Information Act, 2012, was a deeply flawed piece of legislation. In particular, its limited scope of applicability and broad exceptions to disclosure signally failed to meet international human rights standards,” states the  May 25 letter to the government.

“CLD welcomes the improvements in the 2015 Bill, such as rules suggesting harm is required before an exception is engaged and removing the power of the Minister to issue certificates effectively rendering information secret. However, the 2015 Bill is also weaker in some respects, including by adding new and problematical exceptions and by giving the Minister the power to exclude additional bodies from the ambit of the law.”

Mendel noted that The Bahamas has been left “languishing among the minority of countries in the world without any right to information law.”

“It is now time to move forward decisively to adopt a law, albeit a law which respects international and constitutional standards in this area,” he adds.

The letter points out that The Bahamas has a “duty to enact legislation giving effect to the right to information” given that the constitution guarantees it.

In addition, the right to information is also guaranteed by Article 19 of the International Covenant on Civil and Political Rights, signed by the Commonwealth of The Bahamas on 4 December 2008.

A strong right to information law would “ensure transparency and accountability, and improve overall trust in government”, said Mendel.

Mendel, who has consulted with the United Nations, World Bank and other multi-lateral agencies on freedom of information legislation, pledged the centre’s support to the government in passing an effective FOIA.

“I urge you to prioritise the improvement and then adoption of the Access to Information Bill. CLD is ready to offer your government whatever assistance it might need in moving forward with this endeavour.”

In an interview with Digital Disclosure in January 2015 about the 2012 Bill, Mendel described it as containing provisions which were “inherently offensive” to the public’s right to know.

CLICK HERE for a PDF of the Centre for Law and Democracy’s letter to Minister Jerome Fitzgerald. Click here to view the full Right To Information (RTI) Rating of the Bahamas Freedom of Information Act, 2012. and Click here to view the RTI rating of the May 2015 FOIA. Each contains detailed breakdown of the strengths and weaknesses of the legislation.

Fuelling our own demise: Why The Bahamas must divest from oil now

“Climate change is an existential threat to our land mass…We are here to talk about survival.” – Prime Minister Perry Christie, in his position as CARICOM Chairman, in a May meeting with French President Francois Hollande.

 “Our children have the biggest stake in the future. They will bear the consequences of economic, social and environmental decisions and actions that are not harmonious with nature.” – Kenred Dorsett, Minister of the Environment, Earth Day 2015.

 .Digital.Disclosure. / ALISON LOWE

The Bahamian government is attempting to walk a line – a line which is in fact a gulf – between climate advocate and gung-ho oil investor.

Keeping his climate campaigner hat on, Environment Minister Ken Dorsett told Earth Day attendees in Nassau last month it is “no secret that an environmental priority and concern of the Government is the effect of climate change”.

Quite rightly, he noted how 88 percent of the Bahamian population lives within 10 miles of the sea and climate change-associated sea level rise could flood 80 percent of the country.

However, assuming the position of oil enthusiast, the Minister also recently described a possible oil discovery as a silver bullet to end The Bahamas’ by now well-publicised fiscal woes forever.

An oil strike would be, he said without a hint of irony in October 2014, an event which would, “have a massively transformative effect on our fortunes as a people”.

Fiscal deficit? Eliminated. Electricity costs? Reduced. Industry? Flourishing. Generally speaking, oil would “enrich (The Bahamas) beyond its’ imagination,” he said. Not bad, when you put it like that.

In the meantime Dorsett has sought to make real this support for the oil sector by advancing, albeit too slow for the Bahamas Petroleum Company’s liking, oil regulations to govern this sector which he so clearly wishes to emerge.

But viewed from above, the gulf that exists between these two positions our environment minister is trying to straddle is too wide. He must jump to one side if he, and the rest of us, are to avoid drowning.

In answer to a rallying cry Dorsett himself made to students at the Earth Day event – that they should state their solutions to climate change – the response is painfully simple:  keep the oil in the ground, or in our case, under the ocean floor.

It is beyond time to admit that for the Bahamian government to facilitate the establishment of oil wells in its territory is to shoot itself in the foot quite tragically – and not primarily for the reasons most opponents have argued.

For it is true that, as opponents of oil drilling in The Bahamas have long argued, that preserving the sector that currently accounts for the majority of our GDP, tourism, and our marine environment, are both highly relevant to the case against oil exploration.

Oil slicks shimmering in the sunset, inundated beaches, roadways and airports and stronger and more frequent hurricanes are not the stuff of Joe Blow’s vacation dreams.

But even more important to the debate over the way forward on oil drilling in The Bahamas is the larger issue of climate change. Larger in the sense that oil extraction not only has the potential to threaten tourism and the environment via unmanaged oil spills, but it also threatens everything else too – our entire physical land mass. Economically, to accept oil drilling as a form of wealth generation would be to rob Peter to pay Paul.

To appreciate why, the government would do well to examine the impetus behind a major international campaign launched in March by a leading international media outlet, The Guardian.

The Guardian newspaper’s Editor-in-Chief, Alan Rusbridger, explained how accumulated scientific knowledge today tells us the world’s future depends on the remainder of our global fossil fuel resources staying just where they are. If we to extract and burn the fossil fuel that is known to exist, available evidence shows that globe will become a truly inhospitable place.

In fact, 80 percent of all known extractable oil, coal and gas reserves still under the ground must stay put in order to prevent catastrophic climate change of more than two degrees celsius above pre-industrial levels.

With international negotiations among sovereign states having been notoriously protracted, painful and ineffectual in finding an agreed path to limit global carbon emissions, The Guardian has joined those taking a more practical approach. Forget long-sought agreements among politically-hamstrung politicians, the way forward is to de-finance oil. The newspaper is calling for divestment from global companies that lead the pack when it comes to finding and burning more oil, gas and coal. Rusbridger says that not doing so sooner is one of his only regrets of a 20 year career heading the newspaper.

Here in The Bahamas our government could choose to sit back and hope that this high profile, international campaign by The Guardian, and those similarly minded, work; that the world sees the error of its ways fast enough to save Bahamian skins from the inevitable flooding, increased and stronger hurricanes, coral bleaching and loss of livelihoods that will result if the world doesn’t change course.

Or we could recognise that this climate science demonstrates clearly why The Bahamas should undertake its own divestment initiative. More than the overwhelming consensus among leading climate scientists and the launch of The Guardian’s campaign point to why us now is the time to do so.

Last month, April 2015, was the date by which the Bahamas Petroleum Company (BPC), the frontrunner in the Bahamian oil exploration sector, was required to drill an exploratory well in Bahamian waters under the terms of their licensing agreement. The company quietly missed that deadline.

This inaction was the case notwithstanding the fact that Chief Executive Officer (CEO) Simon Potter described the royalty agreement obtained by BPC from the Bahamian government as “second to none” and likely “music to the ears” of the joint venture partner the company was seeking to finance the drilling of the well.

There are likely a multitude of reasons, some of which are out of the company’s hands and can be easily speculated over – falling oil prices and the impact of delayed government regulations for the sector – for why BPC has been unable to secure a partner to fund the drilling and therefore why it has missed this licensing condition.

Whatever the case, the passing of this deadline for action by BPC should have represented an opportunity for the government to disengage from a relationship that is not in the long term best interests of the country.

Instead, with no public discussion over the matter at all, having already done away with initial plans for a referendum on oil drilling, the government chose to renew the company’s licenses, in the process extending BPC’s drilling deadline to April 2017.

Potter said on May 21st that the licence renewals, and extended time given to BPC to drill its first $60-$100 million exploratory well, would help it attract, and finalise a deal with, potential joint venture partners.

Here’s why April 2015 should have been viewed as a turning point and why the public should press the government to reconsider its decision.

1. Do no harm: Selling oil to the world to be burnt and turned into emissions, whose effect The Bahamas will then have to pay to mitigate, is counterproductive and short-sighted.
2. Credibility. Our position as a country that will be among the first to drown as a result of climate change gives us the unfortunate advantage of being able to make a persuasive argument for action, if we choose to try. We owe it to ourselves and other countries like ours to use our voice on the global stage to raise consciousness about the human consequences of the world failing to act. Simultaneously announcing ourselves as an emergent petrostate reliant on fossil fuels for jobs and our government’s fiscal well being undermines that position.
3. Motivation: If citizens conclude today, as many have good reason to, that our government is sluggish on the issue of climate change, we can hardly expect those in power to look after our long term interests by advocating reduced global carbon emissions while they stands to benefit financially from any boost in oil consumption locally and globally.
4. Role model: What would be both ideal and feasible is if The Bahamas were to become a model for others to follow by implementing green technologies. We are an archipelago of islands for which it makes little economic sense to continually replicate power stations, as the high cost of electricity in the family islands, subsidised by Nassau consumers, demonstrates. Moving towards installing renewable solutions to energy will allow us to address this long-standing structural problem while presenting ourselves as a world leader in renewables; an example to those others who we are trying to convince to take an alternate path.

While some, such as BPC CEO Simon Potter have argued that oil revenues could be used to finance such a shift in The Bahamas, common sense and past precedent dictates this would be an appealing but unlikely outcome of oil extraction. History and human nature suggest that readily accessible oil resources would delay, not catalyse, a shift towards renewables in The Bahamas.

All of the above points still leave out the non-climate related causes for concern that arise from an oil-funded future. These include how oil wealth would be managed so as to avoid damaging the already-impaired quality of our democracy and how such a flow of wealth from one sector may inhibit the economic diversification in The Bahamas that it alone does not negate the already-existing need for. An acknowledgment of how these issues factor into the question of whether we want an oil-based economy is needed.

We must also have a debate about whether it is fiscally prudent to hang our economic hat on an industry which has in the last year proven to be more unpredictable than many had ever imagined. No longer is it as straight forward as oil being considered the “black gold” that it once was. As of February 2015, oil prices had slumped to 50 percent of their level the previous summer, and this following the longest price decline in 20 years. If we assume action will eventually be taken globally to further limit oil consumption – whether or not it comes soon enough to save The Bahamas – this also calls into question the industry’s long term value.

From the perspective of our country’s economic health and stability, relying on such an industry – as with offshore finance – could prove bittersweet over the long term.

This is the case even before we get into the subpar financial terms set out between the government and BPC. Dorsett claimed in 2013 that Potter told him he was “misquoted” when he described those terms as “second to none”. Despite the existence of audio confirming his comments, Dorsett brushed it off at the time too, even as others, such as former Minister of the Environment Earl Deveaux, suggested a renegotiation of these fiscal terms should take place.

Now the government has been warned by the Commonwealth Secretariat’s Economic and Legal Section that the financial details of its deal with BPC do indeed provide the government with “a relatively low level of earnings” from an oil strike.

In response, Dorsett has just now brought forward regulations that cap the government’s profit at 75 percent rather than 25 percent, as set out in the BPC deal. The Minister said the new terms provide “a great balance” that gives The Bahamas a “greater benefit” from any possible oil strike.

All very good, except that BPC was quick to point out these terms do not apply to them. Their fiscal terms were set out long ago, said Potter, who frequently argues the company has the country’s best interests at heart.

This again forces the question of whether The Bahamas can, or should, bear the cost of becoming a petrostate, given all of the compromises this would involve and the fact that it is most likely on the back of drilling done by BPC – not any other company governed by these belated and more “balanced” fiscal terms – that this would take place.

But back to Rusbridger. Among the many reasons why climate change has continued unabated, he has argued in The Guardian, is that arousing awareness of the seriousness of the threat it poses to humanity has been uniquely challenging.

For one, those countries set to be most immediately impacted may seem “far flung” to readers in London or New York.

But for The Bahamas, this low-lying, “far flung” state, with its acute vulnerability to the sea level rise and the more frequent and strong hurricanes associated with climate change, is our home.

Which begs the question: with so much at stake, if we do not act in our own best interest, who will?

Small Island States shouldn’t be forced to pay the price for Australia’s high carbon “lifestyle choice”

Australia is one of the world’s top carbon emitters and its Prime Minister, Tony Abbott, is increasingly isolated globally in his staunch defense of the status quo. Highlighting his hypocrisy, the Vanuatu disaster is a prime example of what’s at stake if he refuses to budge.

.Digital.Disclosure./ ALISON LOWE

SYDNEY, AUSTRALIA — As Australian Prime Minister Tony Abbott surveys the wreckage of Vanuatu in the wake of Cyclone Pam, he would do well to think hard about how his high carbon “lifestyle choice” for Australia contributes to the tragedy – a situation in which most of the island nation’s population have been left homeless.

Having stoked outrage last week when he suggested the Australian government should not “endlessly subsidise the lifestyle choices” of Aboriginal people, Vanuatu now demonstrates why Abbott would have done us all a favour by instead applying this misplaced logic to his dangerous stance on climate change.

For in his conclusion about paying your way for costly “preferences”, he could just as easily be driving home the case for why neither Australians nor vulnerable small island nations like Vanuatu and The Bahamas, my country of birth, should be put on the hook financially for the policy decisions of the Abbott government.

Taxpayers in developing countries like mine, already facing a myriad of complex challenges, cannot easily afford to respond to the disastrous and well-documented externalities of the type of high carbon growth strategy that Abbott irrationally clings to.

By blindly expecting our small island states to pick up the ongoing recovery and re-development tabs that will result from more frequent and intense cyclones and sea level rise that go hand in hand with his policy choices, it is the Prime Minister who is demanding an unreasonable subsidy for his unfair lifestyle choice.

As a gesture that apparently recognises the moral duty of a wealthier, developed country towards a poorer and more vulnerable neighbour, Australia’s offer of $5 million in aid and disaster relief is better than nothing.

But by tipping a hat towards this principle, it primarily serves to highlight the gaping divide between what is, and what should be, as far as Abbott’s commitment to grappling with Australia’s disproportionate contribution to the root of the problem.

To many who feel the brunt of Abbott’s approach, it is likely to appear akin to offering someone a headache pill as you defend poisoning their water well.

U.N. chief Ban Ki Moon recently described climate change as, “intensifying the risks for hundreds of millions of people, particularly in small island developing states and coastal areas” – risks such as those now illustrated with horrifying magnitude in Vanuatu.

And as former New Zealand Prime Minister and U.N. development bank chief, Helen Clark, put it at the UN’s world conference on disaster risk reduction, underway in Japanwhen the cyclone struck: “Unless we tackle climate change on the global level we are making the task of building resilience to disasters almost impossible.” So much for $5 million.

There is a strong argument for maintaining remote Aboriginal communities – which, much more than simply a “lifestyle choice” like whether to join the gym, reflect a traditional way of life and an ancient connection to the land.

It is a similar sort of arguments as to why islanders of countries like Vanuatu and The Bahamas would like to remain there, rather than becoming climate refugees (as some already have), likely looking to countries like Australia for refuge when they are forced to leave their homes.

But the Abbott government’s polluting approach to economic growth is indefensible on any level. It is also one that threatens to export Australia’s problems all over the world.

Abbott is increasingly isolated in his stance. He has a duty to change course.

Aboriginal communities may be remote, but it is Abbott’s chosen approach to climate change that is truly “out there,” and set to cost us all dearly.

Global expert: Bahamas Freedom of Information Act Provisions “Offensive”

Close to three years after it was passed in parliament, a global freedom of information expert has highlighted major deficiencies in the transparency law which must be addressed through amendments if the act is to fulfill the purpose for which such laws are intended – to empower citizens, reduce corruption and mismanagement, and increase accountability. 

.Digital.Disclosure. / ALISON LOWE

An assessment of the Bahamas’ Freedom of Information Act 2012 by a global right-to-information expert has found it to be seriously lacking – containing provisions that are “inherently offensive” to the public’s right to know.

Scoring 59 per cent in a rating of the law against international best practices, global freedom of information (FOI) advocate and human rights lawyer Toby Mendel told .Digital.Disclosure. that the myriad weaknesses of the Act, passed in 2012 but never enforced, represent areas that FOI campaigners in The Bahamas should “fight hard” to amend.

These include a rare right accorded to the government minister responsible for information to provide “absolute” exceptions to information disclosure upon request and a scope of coverage that excludes a wide range of powerful public authorities from accountability under the law from the outset. Among these: non-statutory bodies such as the Bahamas Investment Authority, the Bahamas Environment Science and Technology (BEST) Commission, the National Economic Council, the police, Immigration and the Defence Force.

Mendel, Executive Director and founder of Canada’s Centre for Law and Democracy, a Canadian-based human rights non-governmental organization specialising in freedom of information and expression, has also suggested that government’s proposed delay of considering the passage of the act until Spring of 2016 is “not appropriate” given the well-developed status of the law.

Although “problematic” in a variety of key areas, amendments and preparations to implement the law could be undertaken much more swiftly with the requisite political will.

“That’s just screwing around,” said Mendel of Minister of education, Jerome Fitzgerald’s suggestion that the government would wait until next year to advance the Act, first tabled in 2011 and passed in 2012.

“Given that the law is so developed at this point that’s really unacceptable… It’s not appropriate and they need to move forward and pass this thing,” said the FOIA advocate.

His comments were made in a recent Skype interview with .Digital.Disclosure. 

A consultant to governments and entities such as the World Bank and the United Nations on FOI issues, Mendel’s findings essentially suggest that the Bahamian government passed an Freedom of Information Act (FOIA) in 2012 that is at present more of a symbol of a commitment to the principles of transparency and accountability than a workhorse that will get the country there; a paper tiger that makes mention of some of the right terminology but fails to back it up with provisions that assure it.

Although the law performs more strongly in its provisions on procedures – the “how” of information access – it falls down on the “by whom”, the “what” and the “where from” of information disclosure, making this remaining strength fairly meaningless.

There is also an unclear relationship between the law and the Official Secrets Act – a century old law which makes it an offence for officials to disclose information received during the course of their employment. That law entrenched the very opposite of freedom of information and has been acknowledged by successive governments and FOI advocates to have encouraged a culture of secrecy among civil servants; a culture which arguably does as much today to inhibit the public accessing information that is rightfully its own as any legislative initiative.

Mendel came to his conclusions about the Bahamas FOIA after analysing the law using his Centre’s Right to Information Rating system (RTI rating), a respected international benchmarking system used to analyse the quality of the world’s freedom of information laws.

The rating assesses the provisions of the law in the following areas: right of access, scope, requesting procedures and exceptions and refusals, appeals, sanctions and protections, promotional measures. Points are deducted from a maximum score available for each instance in which the law fails to meet international best practices in these areas.

After being measured against these indicators, The Bahamas’ FOIA scores 88 points out of a possible 150, or 59 percent.

This less than stellar score is in fact above average.

However, Mendel said the reality is worse than it appears, for two reasons.

Firstly, the rating itself is based on standards defined some time ago when FOIA regimes were in their early stages. The more recent crop of FOIAs have tended to be more liberal – legislating for greater access to a wider variety of information held by government who pass them.

By comparison to its “peer group” of more recently formulated FOIAs, the Bahamas FOIA would score even more poorly.

Secondly, there is the issue of which portions of the law cause The Bahamas to lose the most points in its rating.

While scoring reasonably well in the area of provisions related to “requesting procedures” and “appeals” under the law, The Bahamas disproportionately drops points in the area of the “scope” of the law (scoring just 10 out of 30 available points) and “exception and refusals” (11 out of 30 available points), due to its serious limitations on who can access information, under what circumstances, and in what form.

Mendel argues that with this level of restriction over what information can be accessed under the law, having a strong appeals system or simple requesting procedures becomes relatively meaningless.

“You can look at the raw score and you can look at where the weaknesses lie. If the weaknesses were better distributed it would be better, but they are fairly concentrated in the scope and exceptions (portions of the law),” Mendel pointed out.

“There are weaknesses throughout but those two areas are particularly weak and those are the two most serious ones because if the law doesn’t cover enough bodies and they have too many exceptions to deny (the right of access) then it’s just not covering the enough stuff. ”

We present in the findings of Mendel and the Centre for Law and Democracy on the Bahamas FOIA, in the hope that the amendments which the government has now indicated are being sought before its implementation will reflect these serious concerns about its efficacy in its present form.

Mendel’s analysis of the FOIA, portion by portion:

SCOPE

The scope of the legislation is the bare bones – the foundation on which everything else is built.

This part of the rating is designed to consider who can access information, what information they can access, and in what form. It looks at whether the executive branch, the legislature, judiciary and state-owned enterprises are covered by the law. Specifically it questions whether the head of state, statutory and non-statutory bodies, police, the armed forces, and other authorities are required to provide information if requested under the law.

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA just ten out of a total of 30 available points – or a rating of just 33 percent.

It was in this area then, that the law appears to fall most woefully short of acceptable standards.

Among the most glaring omissions in what is covered are the restrictions in who can use the Act to access information. At present only Bahamian citizens and permanent residents can make requests.

“Definitely you should push for legal entities to be able to make requests. The way I understand it, it’s only citizens and residents as individuals who can make FOIA requests in this law. And everywhere (else) allows legal entities to make requests (in their FOIAs),” said Mendel of this shortcoming.

If a legal entity could make a request, this would mean that a non-governmental organisation could do so on its own behalf, or a company, for example. In most developed countries, it is these two types of legal entities that are among the most frequent users of FOIAs, using the information they obtain to push for legislative changes based on evidence of how government policy impacts their industry or issue.

Another major lacuna in the law is that it only applies to statutory bodies. A statutory body is one set up by the government and established in the law as having responsibility to carry out certain functions on its behalf. At first glance, Mendel said the fact the law only applies to statutory bodies may not be a problem if there are no non-statutory bodies of great importance to the conduct of public affairs in The Bahamas.

As it turns out, however, there are.

As pointed out by activist human rights lawyer, FOI advocate and Queen’s Counsel, Fred Smith, there are many “pivotal organisations” in the Bahamian system of government that are non-statutory.

These includes the Bahamas Investment Authority, the National Economic Council and the Bahamas Environment Science and Technology Commission (BEST) – entities which, among other things, make major decisions on what foreign direct investments, hotels and other commercial projects, get developed throughout the Bahamas, setting the path for our economic development and major environmental impacts along the way.

Mendel said: “In some countries practically all of the bodies created by ministries are statutory in nature, but in other countries ministries create non-statutory bodies to do things. That’s a perfectly legitimate way of doing business, but only if those non-statutory bodies – bodies which are controlled by ministries – are covered by the (FOIA) law. Your law does cover statutory bodies, however if in practice there are a lot of non-statutory bodies, which is the case in most countries, then that’s a big hole in the law too.”

Yet another major problem identified by Mendel is the exclusion of the police and the Royal Bahamas Defence Force as bodies which are covered by the law. The Department of Immigration is also excluded.

“Excluding the armed forces and the police is ridiculous. They describe them in the law as ‘security and intelligence services’ (but) the police force is not a security or intelligence force, it’s a police force. There’s a difference between excluding intelligence forces, which is not legitimate anyway, and excluding the police or defence force. No one excludes the police or the armed forces,” said Mendel.

Certainly in the case of The Bahamas, advocates would argue that information held by the police and RBDF would be some of the most sought after, by both the media and the public. For example, records of complaints against police and how, if at all, they were resolved, or records relating to immigration enforcement and conditions at the Carmichael Road Detention Center.

Beyond this question of what bodies are covered by the law, the section on “scope” also considers what types of information they must hand over under it. Further inhibiting the impact of the law on the accessibility of information, the Act restricts what can be accessed to “public records”, including only records that are “held” by a public body “in connection with its functions”.

Specifically, it refers to any record that falls into the definition of a record “in writing; a map, plan, graph or drawing; a photograph; a disc, tape, sound track or other device in which sounds or other data are embodied, whether electronically or otherwise, any film, negative, tape or other device”.

What it does not allow for is the accessing of “information” known to the agency generally, as many laws do, rather than simply records held, or information which might not be considered to be held “in connection with the functions” of the agency.

Three out of a possible four points are lost in this section due to the fact the legislation does not provide a right of access to information held by the judicial branch of government, including both administrative and other information. In the Bahamas’ case, only “administrative” judicial information is covered.

Further restrictions appear as to which State-owned enterprises would be required to hand over information under the law. In this case, only those which are 50 percent or more owned by the government would be covered by the law, and even in these cases the Minister can take them off the list of accountable entities.

EXCEPTIONS AND REFUSALS

This portion of the rating is designed to look at the extent to which and under what conditions the disclosure of information can be refused or excepted in certain cases and if the provisions for exceptions to the right of access are consistent with international standards

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA just 11 out of a total of 30 available points – or 37 per cent.

Among the ways in which the Bahamas FOIA allows for exceptions to disclosure in the Bahamas include if a request may “unreasonably divert resources”, if it is considered to be against the public interest at that point in time, if the material would be “defamatory” to any individual, if it would “prejudice the effective conduct of public affairs”, if it would be deemed to have a “substantial adverse effect” on the government’s ability to “manage the economy”

On the issue of the law’s exception to the disclosure of “defamatory” information, Mendel suggested this is among the more egregious of the law’s provisions. He pointed out that defamation, by definition, relates to false claims made about an individual that could damage their reputation.

“If the government holds a defamatory statement about me then I’m damned if they’re going to keep that to themselves. I want to get it out so I can denounce it – and say I am not a liar or a cheat. It’s completely unjustifiable,” he said.

Meanwhile, although the FOIA does include an important “best practice” provision known as a “public interest override” clause, which allows for even exempted information to be disclosed if any harm associated with doing so is deemed to be outweighed by the overall public interest in doing so, the RTI Rating lops points off The Bahamas FOIA’s score for including a provision limiting the potential application of the public interest test. Among the areas where the public interest test will not apply to exempted information held are if the information relates to: national security, Cabinet confidences and law enforcement.

Overall, there are seven areas where exceptions to disclosure provided for in the law are not legitimate, Mendel finds.

“Better practice is to say that even though information is exempt, if the overall public interest is served by disclosure of the information, for example because it discloses evidence of corruption or human rights abuses or something like that, then we’ll still make it public.

“That’s a very important override because it makes sure that information gets made public when it should basically.”

“(National security, Cabinet confidences and law enforcement) are very important exceptions (to the application of the public interest override test in The Bahamas FOIA). National security can get abused like crazy and it’s exactly the kind of area where the public interest override can help to lever out corruption, human rights abuses, or whatever it might be. So I think that’s another pretty important (area to focus calls for amendments),” said Mendel.

Going yet further in its detailing of provisions which take away rights to information that it initially appears to allow for, the law provides for the Minister responsible to issue “ministerial certificates” that exempt certain information that would otherwise be available under the Act from disclosure.

Mendel simply described these certificates that the Minister can issue based on requests made to him by those seeking to avoid disclosing information which they would otherwise be required to under the law as “nuts”.

“Your ministerial certificates are incredibly broad,” he explained.

Most importantly, once granted by a Minister, his decision in this respect is “absolute”.

“It can’t be questioned by the information commissioner or by the courts. So basically if the minister says it is exempt it is exempt.” said Mendel.

This type of certificate is “inherently offensive”, very rare in FOIA laws around the world, and likely to be particularly problematic in a small society like The Bahamas, suggested the FOI expert and advocate.

“In a bigger country, you can’t just shunt everything up to the minister but in a small place like The Bahamas I guess everyone is reasonably close and…and it’s easy to say ‘We need to exempt this information’, so I think that’s a really serious thing.

“Ministers can’t take away rights; it’s a right, it’s a human right, and you just can’t take those things away.”

Finally, the RTI-rating analysis of the FOIA flags up the law’s relationship to other laws that already exist as a cause for concern.

One of the “best practice” provisions which are sought in the FOIA by FOI advocates are that the law would “trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict”.

However, in The Bahamas’ law it is “very unclear” whether the rights to information it initially purports to generate prevail generally over the right to restrict access to information that arises from laws such as the Official Secrets Act, which has been the bedrock of government secrecy in The Bahamas since 1911.

“The relationship with other laws is a very unclear matter and a very important one. It may be that no one has thought it through. If there’s a conflict between the Official Secrets Act and the FOIA in terms of an exception, which one is supposed to prevail?” questioned Mendel.

REQUESTING PROCEDURES

This part of the rating is designed to look at the “how” of making FOIA requests – how does the law specify we go about it, how difficult or simple it is, whether there are “clear and reasonable timelines” spelled out within the law within which officials must respond to requests, and how much it may cost to file a request.

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA a better 21 out of a total of 30 available points – 70 percent.

RIGHT OF ACCESS

The right of access indicator looks at whether the legal framework recognises a “fundamental right to access information”, creates “a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions”, and “contains a specific statement of principles calling for a broad interpretation of the RTI law”, or emphasises “the benefits of the right to information”.

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA three out of a total of six available points – or a rating of 50 percent.

The rating marks down the Bahamas law for failing to recognise that a fundamental right to access information exists and for not having a specific statement calling for a broad interpretation of the law.

APPEALS

This part of the rating is designed to consider whether and in what form appeal mechanisms exist in the law, which would allow those requesting information to easily challenge decisions made and expect an independent and fair response.

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA 26 points out of a total of 30 available points – or a high rating of 87 percent.

Mendel described this as an area of strength in the law, but again, one which becomes less important if – as is the case in the Bahamas FOIA – the law does not provide wide ranging access to information to begin with.

“Having a good oversight system, which you have, is very, very important to the success of this system and especially to levering things up as you go along,” he said.

SANCTIONS AND PROTECTIONS

Among the best practices expected in an FOI are sanctions against those who seek to undermine the right of access to information provided for in the law, for example through the unauthorised destruction of information that might otherwise be disclosed. Protection of officials who act in good faith is also key to the law’s effectiveness.

In this area, the Centre for Law and Democracy ascribed The Bahamas FOIA 50 percent – four out of a total of eight available points.

While the law has provisions which can be used to impose a $10,000 fine or prison term of not more than six months – or both – on someone who tries to block access to information, this was reduced from the $100,000 that existed under the first form of the Act.

Meanwhile, the law does not allow for any sanctions against a public authority which “systematically fail to disclose information or underperform(s)” its duties in this respect, the rating finds.

For the first time in Bahamian law, the Act provides good protection for whistle blowers, shielding from legal, administrative or employment-related sanctions if they disclose evidence of wrongdoing.

It also protects the staff of the information commission when they act in accordance with the law – all important to encouraging civil servants to do away with the culture of secrecy that has pervaded Bahamian society and officialdom for decades.

Ironically, however, it does not provide good protection for every official who may act “in good faith” under the law, whether they were later deemed to have “correctly interpreted it” or not. This is a problem, in Mendel’s view.

“So in other words, if an official gets a request for information and they say, ‘OK, I think this material is not covered by the exemptions’ and they give it out, but later on a court decides that it is covered by the exceptions, so they made a mistake, are they going to be liable under the Official Secrets Act and go to prison for 15 years? If they are, they’re not ever going to give out information because they’ll always worry about the Official Secrets Act. So they’ll always be looking over their shoulder.”

Mendel stressed that if the culture of secrecy is to be turned, giving officials the confidence to apply the law is key.

“Everyone should be free of liability if they act in good faith,” he said, adding: “The risk of them actually exposing information that shouldn’t be disclosed is negligible. We have thousands and thousands of examples in every country in the world where (civil servants) don’t disclose information that should be disclosed and almost no examples of officials disclosing information which shouldn’t be disclosed, so the risks associated with this protection are nil and it’s very important.”

Such protection is just one of a number of actions which should be taken to ensure that civl servants not only do not feel “threatened” by the FOIA, but also buy into it.

As a start, they must be a part of a broad public consultation process that should accompany the introduction of an FOIA, said Mendel.

To date, that process has yet to take place in The Bahamas, with neither civil society, the media, or the civil service formally consulted, and neither has the government stated an intention for this to occur.

Mendel said: “If the civil service feel like this is something that is being pushed on them by an irate corporate or NGO sector that wants to control them and hold them accountable or whatever then that’ll be kind of bad optics from the beginning.

“What you often see is there’s an open process, the government will hold consultations and there’ll be a white paper and people give submissions, and people will write pieces in the newspaper, but civil servants will not be included in that, but they’ll have another discussion kind of behind your back with government and they’ll say,’Well, we can’t have this’ and ‘We need to protect ourselves’ – that’s a very unfortunate way for it to happen.”

“Public officials are citizens. They’re not this kind of strange breed of aliens that are governing us. It sounds a bit silly but it is an important point and saying to them, ‘Look, this will mean you have to share information you didn’t share previously, but that’s going to make The Bahamas a better country and a better society and that’s the society that you live in’.”

Mendel said having an FOIA in fact has specific direct benefits for the civil service beyond the general improvements to governance, accountability and service delivery that should accrue to society at large.

“Openness is basically a guarantee of protection for honest officials. My wife is a senior civil servant in Canada and as soon as she feels she is being pressured or levered into doing something that she is not uncomfortable with she writes a memo to file explaining that…that is basically saying, ‘Here’s my side of the story’. And she does that very explicitly.

“So in general openness protects honest officials from getting dumped on or screwed by the system. I don’t know whether that’s an issue in the Bahamas but it is in most systems at least to some extent. It prevents officials taking the rap, even if it’s a small rap, when the minister may have been the one who pushed for it to happen.”

‘MOTHERHOOD AND APPLE PIE’

The government’s delay in enacting the FOIA and the scepticism about their commitment to transparency that is building as a result comes at a point when, elsewhere in the world, arguments against enacting FOIAs are becoming increasingly scarce.

“In many places it’s very easy to build a strong coalition of support around this issue because it’s motherhood and apple pie,” he told .Digital.Disclosure.

“It’s just obvious that openness is a good thing and that the government, which is owned by the people should be responsible to the people and accountable to sharing information with them. These are just basic concepts,” he said.

This is so much the case that freedom of information is now guaranteed under the law in over 90 countries and has evolved to be regarded as a human right under international law.

Mendel is sceptical about whether it’s actually possible to have good governance and true democracy in The Bahamas – or anywhere – without an FOIA.

“Theoretically a government could be very open without one, just on a sort of policy basis, or a practice basis, but in reality that never happens. So in reality, no you can’t have robust good governance (without an FOI).

“Information is power and the culture of secrecy and the tendency of officials to kind of stand guard over the information they control prevents in practice the kind of openness that is required for good governance without a FOI law. A FOI law gives you the legal right to get it then they can only screw around so much, as it were. Or maybe a good way to put it is that the quality of governance will improve with an access-to-information law. Wherever you are at now, it will improve.”

This conclusion is both intuitively sound and supported by examples from all over the world where FOIAs have been implemented, despite the fact that both corruption and good governance are difficult to measure.

“There is masses and masses of anecdotal evidence of where FOIAs are used to expose corruption to expose mismanagement or waste.”

“The high profile use of FOI laws is in the exposure of corruption and of course the media and civil society love that…It’s a very important benefit of these laws and it also goes some way towards answering the complaint about the costs of these laws, because you don’t have to reveal a lot of corruption or mismanagement before you start to recoup more than the costs of running the system.”

But having an FOIA is not just about the “news sexy” issues of corruption and mismanagement, it’s also about empowering the average man to have greater control over small community issues that could affect his own life in a very direct way – like new roads or commercial developments proposed in your neighbourhood.

“Using these laws people can engage more effectively they can get the information they need to participate in a policy process, a planning process, whatever it may be. It’s also important) in terms of accountability, not just corruption but just identifying waste, development projects that are off kilter, or not hitting their desired targets in the right way. So it just contributes in a general and positive way to foster public engagement in all of the processes the government undertakes, which creates ownership, creates buy-in, and not always but generally speaking improves those processes,” he said.

It’s beyond time that a Bahamian government recognised the right of its citizens to access information it collects on their behalf using public funds.

Whether or not the government does decide to wait until 2016 to enact the FOIA – and they need not – the RTI rating and Mendel’s analysis shows the path that the government should immediately begin to take in making amendments to the law.

Such improvements are necessary if the government wishes the law to be anything but a paper tiger, or for the media and the public at large to judge it to be even semi-serious about much-needed transparency and accountability.

Click on the link below to view the full Centre for Law and Democacy Right to Information (RTI) Rating of The Bahamas FOIA 2012.

Bahamas.FOI.Jan15.score

Click here to view the FOIA 2012

Bahamas FOIA 2012

What do you think? Leave comments via the link to the left of this post.

“Not a corrupt country!”? Let us see for ourselves

The government should act on longstanding calls for openness rather than patronising the public when it comes to corruption. Transparency International’s methodology falls short in its failure to acknowledge our governments’ lack of transparency.

.Digital.Disclosure. / ALISON LOWE

“The Bahamas is not a corrupt country!”, the government declared in an emailed release to the media this week. It came after the publication of Transparency International’s index which ranked the Bahamas in the best 14 percent of countries for its “perceived” levels of corruption, and therefore among the least corrupt countries in the world.

When I received this email from the government’s chief information officer, with a note from the Minister of National Security adding that, “it is a shame our media outlets only wish to publicize and promote negative reports on The Bahamas”, I grimaced. Besides the hypocrisy of it in a month when other international organisations, Amnesty International and the Robert F. Kennedy Center for Justice and Human Rights, have been dismissed as ill-informed after criticising the government, an index designed to discourage corruption is now being used to laud our less-than-stellar status quo in this respect.

Don’t get me wrong; The Bahamas is indeed a lot less corrupt than many other places in the world. I have traveled to Cambodia and Vietnam, where public officials ask poor citizens for hefty bribes in the street. But “not a corrupt country”? That’s pushing it; quite far in fact.

The Problem With ‘Perception’

The challenge is that Transparency International’s well-intentioned methodology is just not nuanced enough to show that the “perception” it measures can be quite far removed from reality. To become aware of something we must first have in place the tools to do so. The Bahamas is not well set up, institutionally or culturally, to “perceive” corruption or act upon it.

We lack a Freedom of Information Act, transparent and fair public procurement rules outlining how the government spends public money to buy goods and services, protection for whistleblowers who reveal corruption, or campaign financing laws that would require political parties to disclose election contributions.

While it might be nice to imagine ourselves the only country in the world that just does the right thing without needing such legislation, what is more likely is that because of their absence we are simply failing to identify, or overlooking, corrupt acts. This state of affairs has also contributed to our laxity in enforcing the laws that we do have; there has never been a conviction under the 1976 Prevention of Bribery Act.

Sense and Sensibility

But the red flags are there. Just look at the many decisions in our country that don’t seem to make a whole lot of sense if we are trying to decipher the public interest. In 2012 and 2013 the government spent a lot of time drafting, debating, and passing legislation to allow for stem cell treatment. While such a bill could lead to some new business for certain specific individuals who lobbied for it both overtly and covertly, we later discovered, the benefit is unlikely to be felt broadly.

Meanwhile, the government sidetracks the more obviously beneficial agendas of well-established groups, such the Bahamas Contractors Association; groups who have been pushing for “their” legislation for decades, legislation that could clearly impact many Bahamians in a positive way.

Some developers’ projects and permits move exceedingly quickly through opaque approval systems, and elicit complaints that developers are being allowed to run roughshod over environmental standards, while others’ proposals languish for years. These nonsensical scenarios all point to a certain way of doing  business.

Corruption is all the more likely when a public sector is often inefficient and frustrating, when everyone knows everyone, and there is a history of disregarding or downplaying it, as it is in The Bahamas. In these circumstances, we are more inclined to take it easy on those who transgress, or to transgress ourselves, doing “favours” for “friends and lovers”. This may or may not be “for private gain” in a monetary sense, but it is still corruption. Improper “gain” can come in many forms.

The Lady Doth Protest Too Much

And so with the information officer’s email, the words “The lady doth protest too much” came to mind. This email did, after all, come in a year when the government had to defend itself in the face of a U.S. State Department report which spoke of improper “interventions” by Bahamian government officials in investment decisions and complaints by U.S. companies about the same. That report was met with strident denials by the government and attempts to vilify its authors.

It also came in a year when the prime minister openly admitted personally stepping in to stop tax official Ishmael Lightbourne, from having his home repossessed over unpaid debts to a local bank. Other politicians jumped to the prime minister’s defense. In fact, so did many members of the public.

Inconsistency

It is not that Transparency International generally ignores the importance of access to information and its role in relation to corruption. It makes much on its website of what is necessary to discourage, unveil and root it out. Top of the list? Public access to information.

“In the fight against corruption, information is a powerful weapon. And when it’s not freely accessible, the corrupt can get away with hiding evidence of their crimes. That’s why it is vital that governments around the world put robust laws in place to enable citizens to get the information they need to hold their leaders to account.”

“It is an important part of Transparency International’s work to first, advocate for strong access to information laws globally and second, ensure they’re properly implemented so that citizens can exercise their right to know safely and effectively.” Yet in announcing its findings, its index ignores the fact that the public in The Bahamas are at a serious disadvantage when it comes to “perceiving” the most insidious forms of corruption.

We Are All Adults Here

So rather than declare that “The Bahamas is not a corrupt country!”, we should recognise that we must still strive to minimise corruption by changing how we behave and making our legal framework less friendly to it. We’re not there yet – not even close. Getting there will take effort from each and every one of us.

Transparency International should review their methodology. We should all consider how small or large “favours” we might seek or give contribute to corruption and hold The Bahamas back from development that benefits society more broadly.

Most importantly, the government should act rather than patronising the public with declarations that we are corruption free and criticising the media for doing their jobs. We are all adults here.

If we are so squeaky clean, then why not do what no government has to date had the guts to do: have full and frank disclosure and let us see for ourselves? Pass a Freedom of Information Act to give us access to what we have a right to know, and protect whistleblowers. Pass a campaign finance law. Reform public procurement. And while you’re at it, undo the bureaucratic roadblocks that cause corruption to fester and enforce the laws we have on the books. I’d happily receive an email gloating about that any day of the week. Denying corruption exists for the sake of public relations – or taking someone else’s word for it – does no one any good in the long run.

Comments? Leave feedback in the form at the bottom of this post or send an email to digitaldisclosurebahamas@gmail.com.

 

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UN ECLAC Forecasts Bahamas Growth Uptick in 2015

The United Nations Economic Commission has projected that The Bahamas will see growth of 2.8 percent in 2015; maintains 2014 growth forecast of 2.3 percent.

.Digital.Disclosure.: ALISON LOWE

ECLAC has forecast that growth in The Bahamas will grow more in 2015 than 2014, with its forecast growth rate rising to 2.8 percent from 2.3 percent this year.

This 2015 growth forecast positions the Bahamas is ahead of the Caribbean’s growth forecast as a whole, which stands at 2.2 percent. Guyana, St Kitts and Nevis, and Suriname were the only Caribbean countries to beat The Bahamas’ growth prospects next year in the ECLAC report.

The 2.3 percent forecast maintained by ECLAC for The Bahamas in 2014 remains more optimistic than the rates forecast by other international agencies.

Growth in Latin America and the Caribbean as a whole is expected to reach 2.2 percent in 2015, up from a sluggish 1.1 percent in 2014, according to the latest statistics from the U.N. agency which monitors the region’s economic development and prospects.

This 1.1 percent figure for 2014 represents the slowest growth in the region since 2009.

In a press release on the findings in its “Preliminary Overview of the Economies of Latin America and the Caribbean” briefing paper, ECLAC said of the anticipated 2015 growth boost: “This moderate rise will take place in the context of the global economy’s slow and heterogeneous recovery, with downward pressure on commodity prices and little dynamism in the region’s external demand as well as an increase in financial uncertainty.

The evolution of the global economy will have different impacts among countries and sub-regions in 2015, as it did throughout 2014. Central America plus Haiti and the Spanish-speaking Caribbean are expected to grow at a rate of 4.1%, South America at 1.8%, and the English-speaking Caribbean at 2.2%.”

Bahamas Ranks Favourably On Corruption Index

The index intends to compare countries based on measurements of perceptions of corruption in the public sector.

.Digital.Disclosure. / ALISON LOWE

Transparency International has ranked The Bahamas 24th out of 175 in its annual Corruption Perceptions Index.

The Bahamas received a score of 71, on a scale from 0 to 100 where 0 is highly corrupt and 100 “very clean”.

Denmark comes out on top in 2014 with a score of 92 while North Korea and Somalia share last place, scoring just eight.

The Bahamas ranks ahead of most other countries in The Americas, with the exception of Canada, Barbados, United States, Chile and Uruguay.

Transparency International hopes to rid the world of corruption through highlighting its prevalence and detrimental impact, and by providing tools and recommendations for reducing it.

The organisations states that the corruption index is, “a composite index – a combination of polls – drawing on corruption-related data collected by a variety of reputable institutions.”

“The index reflects the views of observers from around the world, including experts living and working in the countries and territories evaluated.”

Download the full brochure on the ranking here.

Have your say on this ranking on their page about The Bahamas’ position in the index and send comments to .Digital.Disclosure. using the “leave a comment” link to the left of this post.

Cayman should ‘learn from Bahamas immigration bungle’

Cayman newspaper says Bahamas has created “an international public relations problem” for itself

The editorial board of the Cayman Compass, a leading Cayman Islands news source, has argued that the handling of the enforcement of The Bahamas’ new immigration initiative leaves much to be desired and presents a lesson to those islands.

The editorial reads: “We turn our attention to the Bahamas – who, as some may recall, essentially bequeathed its North America banking industry to Cayman beginning in the late 1960s because of politically induced turmoil, increasing racial tensions and (as it proved, economically suicidal) protectionist policies. Unfortunately for them, but fortunately for us, the Bahamas’ loss proved to be Cayman’s gain.

Recently, the Bahamas’ actions in the area of immigration have grabbed international headlines, which we hope local officials have read in earnest, for our neighbor is again providing us with an example of what not to do.”

Long Island Murder As Int’l Competition Gets Underway

A year on from the tragic death of Nick Mevoli during the Vertical Blue free dive event, a woman is murdered on the island as competitors gather again

.Digital.Disclosure. / ALISON LOWE

A year since the Vertical Blue free diving competition in Long Island had to be suspended after a diver died tragically the island is again on edge while the event is underway following the brutal murder of a woman just miles from the dive site.

The Royal Bahamas Police Force (RBPF) has reported that a woman was found stabbed, with both her hands and feet bound, shortly after 8 a.m. on Saturday, November 29.

Late Sunday, Superintendent Stephen Dean said that a 44 year-old man was assisting police with their investigations.

The murder took place in Deadman’s Cay, some 10 miles from Clarence Town, where dozens of international free divers and spectators are currently gathering for the daring annual competition.

Police have requested public assistance following the murder of a woman in Deadman’s Cay, 10 miles from where a major international diving competition is being held, a year on from Mevoli’s death.

Competitors from all over the world travel to Long Island, which has a population of just under 3,000, to attempt to free dive to depths of up to hundreds of feet in the 663 foot deep Dean’s Blue Hole during the Vertical Blue competition.

This is the first time the competition has taken place since the death of U.S. free diving record holder, Nick Mevoli, on Sunday, November 17, last year. Mevoli died after resurfacing from a dive of a depth of over 200 feet. He had been attempting to dive to 236 feet on a single breath.

Vertical Blue began on November 27 in Long Island and is scheduled to wrap up on December 5.

A.P. Digs Deeper on Bahamas Policy

As the question of the rectitude of The Bahamas’ new approach to immigration continues to get traction in the international media, the Associated Press has come out with a nicely rounded article on the issue, quoting affected migrants, the government, and activists, while also noting the popularity of the new policy among the Bahamian public. The article, which is longer than the AP’s typically brief, attention-grabbing pieces on sinking sloops, crimes against tourists, and celebrity scandals, highlights the controversial nature of the policy the government has decided to take in the eyes of those outside our borders. Kudos to The Tribune’s Ava Turnquest, also a freelancer for the A.P., for her job on this one.

Take a read here…

The A.P. hones in on the government’s new immigration policy, which has seen hundreds detained and deported and creates more onerous requirements for those seeking status in The Bahamas.