A LOOK AT THE FREEDOM OF INFORMATION LEGISLATION

By Daniel Singh

A Law Reform Commission Committee has been set up to embark on a law reform exercise relating to Freedom of Information (FOI), which will culminate in recommendations and draft legislation in this subject area. Here are some points worth considering coming out of a radio interview I did with Chairman of the Law Reform Commission Mr. Ray Harris recently.

Article 19 of the Universal Declaration of Human Rights, which applies to the Virgin Islands, specifies that everyone has the right to freedom of opinion and expression; and this right includes freedom to hold opinions without interference, as well as to seek, receive and impart information and ideas through any media regardless of frontiers. It is certainly admirable to have the right to hold an opinion and to be able to express it, but for one's opinion to be informed it is crucial that he or she has the right to seek and receive relevant information. That is why it is considered important at this juncture of the development of the BVI to enhance good governance by introducing Freedom of Information (FOI) legislation. The purpose of the legislation will be to encourage more open and accountable governance by establishing within a legislative framework a right of access to official records and information.

Many view the right to information as an essential element of democratic government. It is argued that bureaucratic secrecy leads to arrogance in governance, defective decision-making and impedes the political education of the people. It also affects the confidence of the public in government. Further, public opinion has changed in that people generally expect greater openness and accountability from government than they used to. In today's competitive global economy people must make intelligent and informed judgments, for example, at elections or as regards other issues of importance to the society, hence people must be aware of the critical issues and choices that face their society.

Legislation relating to FOI usually defines the right to information as a basic human right, as spelled out in international human rights law. Hence, the enactment of such legislation in the BVI will provide the people of the territory with a general statutory right of access to the information held by public authorities. It should be noted that the "right to know" has existed in Sweden since 1766, in the USA since 1966, in France since 1978, in Canada, Australia and New Zealand since 1982, in the Netherlands since 1991 and in the United Kingdom since 2000. The Act will provide a clear standard of openness for the government, which is in keeping with the doctrine of ministerial responsibility as well as accountability to the Legislative Council and by extension the people of the BVI. A few Commonwealth countries have already enacted legislation on FOI or incorporated it in their national constitutional framework. However, in many Commonwealth countries the law does not protect this right.

Legislation on FOI establishes minimum standards for the maintenance and preservation of records by public authorities. Such authorities are required to allocate sufficient resources and attention to ensuring that public recording is adequate. The legislation usually establishes a general obligation to publish the following categories of information:

< operational information about how the public authority functions, including costs, objectives, audited accounts, standards, achievements, etc., particularly where the authority provide direct services to the public;

< an index of records the authority holds;

< information on any requests, complaints or other direct actions which members of the public may take in relation to the authority;

< guidance on information retention processes of the authority and the form in which this information is held; and

< the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision.

FOI legislation usually sets out the right of every person to obtain access to official documents. For example, in the statement "every person shall have the right to obtain access to a document of a ministry or prescribed authority other than an exempt document", the word "document" could be defined to mean information recorded in any form, whether printed or on tape or film, or by electronic means or otherwise and includes any map, diagram, photograph, film, microfilm, videotape, sound recording, or machine readable record or any record which is capable of being produced from a machine-readable record by means of equipment or a program (or a combination of both) which is used for that purpose by the public authority which holds the records.

The legislation usually incorporates a procedure for obtaining access to certain information and stipulates a time limit for the public authority to notify the applicant of approval or refusal of his request. Access to information may sometimes be refused for purely administrative reasons: the request may be too broad and would yield an unwieldy volume of information; or the gathering and reproduction of such information would disrupt normal operations. Another reason for refusal may be that the requested information is, or is about to be published. Some FOI legislation requires fees before disclosure of information, but such legislation may provide for the waiver of fees where disclosure of the information is in the general public interest.

Access to information legislation must also take account of laws relating to privacy. There is widespread agreement that personal information in the control of the state must be refused to all but the person concerned, save in the most exceptional circumstances. All legislation relating to FOI also deals with the tension between conferring a right to access to publicly held information while at the same time exempting certain records on the basis of state interest. There is a clear acknowledgment in such laws that there must be limits on access. Hence, even where the right of access has the appearance of an absolute right, there is always a countervailing claim for legitimate restrictions on that right.

The categories of exempted information in access to information legislation are often subdivided into mandatory and discretionary exemptions. Exempt categories of documents common to most right to information laws cover

4 cabinet or Executive Council documents;

4 documents relating to defence, national security and law enforcement;

4 documents subject to legal professional privilege;

4 international relations documents;

4 documents affecting personal privacy;

4 documents relating to trade secrets;

4 documents containing information of national economic interest; and

4 documents containing material obtained in confidence.

FOI legislation usually includes the right to request correction of records. For example, if a public authority inadvertently uses incorrect personal information to make a decision about an individual, this can have serious implications for the person concerned. Laws often provide that, if a public authority declines to make a correction, it must annotate the information reflecting the nature of the person's request, the fact that the request was denied and the reason for denial of correction.

Obviously, in any law relating to FOI, there must be legal remedies and the right of appeal. First, it should be noted that governments are subject to law and that an individual has the right to take legal action against the state for breaches of the law. A consequence of such a right is that requesters have legally enforceable rights of access to records in the possession of the government that are relevant to their claims. Those denied access in these circumstances may have to appeal to the court or to an administrative review body assuming that such is available. Courts are given full powers to review administrative decisions of public authorities and also to examine any record in order to determine whether or not it should be released.

It is noteworthy that some FOI laws contain a provision for the establishment of an Information Commissioner. However, many do not provide for the establishment of such an office because small island states or territories often experience human resource constraints, which would make the staffing of such a position difficult and it has been found that FOI legislation can work effectively without such a Commissioner.

With the foregoing information in mind, it should be noted that some countries refer to such legislation as Access to Information Legislation as distinct from Freedom of Information legislation. Some prefer to refer to the legislation as Access to Information (ACI) supposedly to prevent confusion about the public's right to information. They posit that FOI may imply to some people that there is an unlimited or absolute right to information held by Government while ACI suggests that there were conditions attached to the release of that information. Others feel strongly that the spirit of the legislation should be to project the idea of openness and its title and provisions should proceed on the presumption of disclosure. The idea must be to give the right unless an overriding interest exists to prevent the disclosure. The right is therefore a "freedom" so to speak, subject obviously to justifiable qualifications in that no right is absolute.

There are many views as regards what documents should be exempted and, therefore, it is true to say that laws from various countries have their own little nuances in that regard. Likewise there are many views as regards the charging of fees for disclosure of information. It must be remembered that there is a cost to properly implement FOI or ACI legislation, because it puts public authorities and the information they hold at the service of the people. Hence, it is important that the cost factor be examined and that the charging system be fair and carefully considered so as not to act as a deterrent to requests. Some persons are of the view that fees should be chargeable for all requests and certainly before information is disclosed; others posit that fees should be chargeable only for the reproduction of official documents, hence, one should not pay fees for merely inspecting or viewing any official document to which access has been granted.

In conclusion, although the objective of FOI or ACI legislation is to enhance democracy by granting people access to relevant information so that they may more effectively participate in national decision making, such legislation must not undermine the investigation, prosecution or prevention of crime, or the bringing of civil or criminal proceedings by public bodies. Further, such legislation should not disadvantage the Government in litigation, hence, legal advice obtained by Government that would be protected by legal privilege would not normally be covered by such legislation. What are your views about FOI or ACI legislation? The Law Reform Commission is now soliciting submissions from the general public regarding FOI legislation for consideration by the Committee. Submissions may be mailed to the Secretary, Law Reform Commission, Attorney General's Chambers, Government of the BVI, Post Office Box 242, Road Town, Tortola; delivered in person to the Commission's office on Flemming Street, Road Town; or sent by email to lawreform@bvigovernment.org. The deadline for submissions is March 31, 2004.