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.