Making Access to Information Law Work in the Caribbeans Part -II Saint Vincent and the Grenadines FOI Act

As Governments across the world are slowly recognising the fundamental importance of the people’s right to access information in a functioningand successful democracy, the number of laws guaranteeing it in practice is rapidly growing. The formidable challenges for securing the people’s right to information are primarily of two kinds; drafting thorough and best practice access to information laws, and implementing those laws effectively. Yet while the content of some laws are progressive and based on international best practice, others are just a window dressing. South Africa for example has a very comprehensive law guaranteeing openness even in the private sector, on the other hand Pakistan’s Freedom of Information Ordinance 2002 only applies to federal bodies and does not override any existing laws, severely limiting the scope of the Act.

Looking at the Commonwealth Caribbean in this context, many have enacted comprehensive access to information laws. In Part 1 of this article in the last newsletter, we discussed the St Vincent and Grenadines Freedom of Information Act 2003 (the Act). This article will go on further to identify the salient features of this Act and how it does, or does not, comply with international best practice principles for a law implementing the right to information.

1. Principle of Maximum Disclosure

This best practice principle implies that the law should be drafted such that there is a presumption in favour of giving people access to information. A best practice law should provide every person with the right to receive information, and correspondingly provide that bodies have a duty to provide that information. The Act provides for this essential principle by providing all members of the public with a right to access documents in the possession of public authorities.

However, the choice of drafting this provision has resulted in a few limitations. Firstly, it only grants access to information that is recorded in the form of documents. In practice, such wording has often been interpreted so that access is given to recorded information available in documents, that is, access is given to information in written form or printed matter, maps, plans, contracts, photograph and sound or visual images. India’s Right to Information Act 2005 which is more progressive uses broad terms like the word ‘information’ instead of the word ‘document’ to extend the meaning of the word document and give the right of access materials in any form including taking samples. The term ‘information’ has enabled people to inspect roads and to take samples revealing corruption and misuse of funds.

The second limitation is that it only grants access to information that is in the possession of the public authorities. Often information request made to public authorities require that public authority to collate information from various other public authorities and provide the requestor with the information. In laws where the wording ‘in possession’ is used information officers often use it to deny access to such information requests. To avoid such denials by public authorities recent laws use the wording, ‘held or under the control of public authorities.’

Another very important indicator of whether the maximum access to information is granted by the law is to see what bodies are covered by the Act. Many laws around the world impose an obligation to provide information on all public bodies at all administrative levels from the Parliament and Cabinet, to state owned enterprises established for a public purpose and local authorities. In fact, many access laws now cover private bodies that carry out public functions or where their activities affect people’s rights, recognising the growing role that private bodies play in providing public services. The Act takes a backseat in creating an open regime in two ways. First, it does not impose a duty on any private bodies to provide information, and secondly, the law gives blanket exemptions to the Governor-General and his commission of inquiry, and to the Courts of Appeal and its registries in their judicial capacity. There is no rationale why such a blanket exemption should be necessary.

2. Minimum Exceptions

All right to information laws also exempt some information from being disclosed when it is necessary to protect and promote the public interest. However, exemptions must be narrowly drawn so as to ensure that only the information that could harm the public interest is withheld, and no more. A right to information law should not allow room for refusal to disclose such information the disclosure of which is in larger public interest. How information affects the public interest, will depend on the specific information and each case will be unique, and therefore no blanket exemptions should be provided in the law. The Act exempts Cabinet documents, information relating to national security, defence or international relations and documents containing personal information. The exemptions include information to which any secrecy provisions apply. If other legislation, such as the old Official Secrets Acts for example, prohibit or restrict disclosure of information they should be repealed so that as far as possible such other legislation is interpreted in a manner consistent with FOI laws. 

3. Simple Access Procedures

A key test of a right to information law’s effectiveness is the ease, cost and promptness with which people seeking information are able to obtain it. The law should include clear and uncomplicated procedures that ensure quick responses at affordable fees. Under the Act information can be sought from public authorities in two ways. It imposes an obligation on the public authorities covered by the Act to proactively publish and disseminate documents of general relevance to the public, for example, on their structure, norms and functioning, the documents they hold, any opportunities for consultation and the procedure to request for access to documents. Under this Act information is openly available as part of the proactive disclosure provisions or it may be available for purchase if another law applies. The other method for accessing information under the FOI Act is by a person making a written request for information, which then places the obligation on the public authority to assist the requestor who is making a request for information while identifying documents. A reasonable opportunity of consultation is required by the law so that all requests are not denied under the pretext that the requestor was unable to identify documents required. Unfortunately the Act does not designate this responsibility to any particular officer within that public authority, which may frustrate the objective of the provision.

4. Effective Enforcement Mechanisms

Effective enforcement provisions ensure the success of access legislation by ensuring that public authorities are implementing and administering the law properly. One aspect of this is that any public authority withholding information must provide reasons for that, enabling the requester to appeal the decision and have it reviewed. Under this Act review of the decision is only provided for using the courts of law. This is not ideal as formal court systems tend to be slow, costly and uncertain. Ideally a right to information law would create a powerful, independent and impartial body such as an Information Commission, to review refusals to disclose information and compel release of that information where necessary. There may be reasons why a new body such as this is not realistic given resources, and this may be why Saint Vincent and the Grenadines has not followed this best practice approach.

5. Monitoring and Promotion of Open Governance

Many access laws now include provisions empowering a specific body, such as the newly-created Information Commission or an existing National Human Rights Commission or Ombudsman, to monitor and support the implementation of the Act. Under the Act, the Minister is responsible for reporting on the operation of the Act to Parliament however there is no independent body charged with ensuring implementation is occurring. As a result, very little has been done to implement the FOI Act by the Minsiter to date evidencing a disturbing lack of political willingness in creating a new era of open governance.

While a law alone – no matter how good and comprehensive cannot itself ensure information will be accessible to the people, a well drafted law is half the battle won. The Saint Vincent and Grenadines’ FOI Act, while not being in line with international best practice in many aspects, does provide all the basics that enable a person to use the law. All that is needed now is for the people to start using the law, forcing the government to change its lax approach to implementation.