The Tribune

IN THE debate on the recent brazen disclosure of an environmental group’s confidential e-mails on the floor of the House by a government minister, using parliamentary privilege as his cover, the unkindest cut of all got lost in the small print.

It was the callous dismissal of Bahamas Data Commissioner Mrs Sharmie Farrington-Austin by Foreign Affairs Minister Fred Mitchell, who accused her – with Fred Smith, QC – of being in contempt of parliament by “breaching the privileges of MPs”. He appealed to House Speaker Dr Kendal Major to prevent further breaches. Of course, Mr Mitchell’s “dictatorial tendencies” – as predicted by Sir Lynden Pindling in 1990 – were in full display as he haughtily dismissed her among “half baked lawyers and misdirected public officials and courts” for their brazen audacity. She was obviously classified among the “misdirected public officials”.

On June 5, 2013, Bahamas Information Services, announced the Ministry of Finance’s confirmation of Mrs Sharmie Farrington-Austin as the Bahamas’ new Data Protection Commissioner. A woman of impressive academic credentials, both in the law and with experience in various government departments, she also represented the government at the level of the Financial Action Task Force (on money laundering) and the UN Office on Drugs and Crime. In other words Mr Mitchell was not demeaning one of our numerous F-level graduates. Mrs Farrington-Austin’s credentials, if not superior to Mr Mitchell’s, could certainly match his.

This well-respected Bahamian woman had been appointed by government three years ago to establish a privacy law in The Bahamas. The Data Protection Act was to have increased The Bahamas’ profile as an international commercial centre, potentially positioning it as a preferred jurisdiction for locating data services. After the antics in the House of Assembly last month, government members must know they have successfully torpedoed their goal of raising the Bahamas’ economy onto the digital level. But, of course, their own selfish machinations were far more important than protecting the Bahamas’ reputation as a respected and safe commercial centre.

During last month’s budget debate, Education Minister Jerome Fitzgerald read from private e-mails exchanged between members of Save the Bays (STB) in its fight to protect the seabed, now part of the Nygard property at Lyford Cay, and Jaws Beach for the public. Mr Fitzgerald later tabled the environmental group’s private e-mails in the House. His action was supported by Mr Mitchell, and other parliamentarians, who threatened to release more of STB’s private documents. However, Save the Bays moved to the courts immediately and on March 18 got an emergency injunction to prevent the parliamentarians or any other unknown person, from any further releases of private documents, much to the chagrin of Mr Mitchell.

As Data Protection Commissioner, Mrs Farrington-Austin immediately did the job she was appointed to do. She admitted that although she had no authority to interfere with parliament, what Mr Fitzgerald, Mr Mitchell and others had done was a “most dangerous trend that leaves society open to chaos”.

It was the Commissioner’s “considered view that members of Parliament ought to be cognizant of the fact that members of the public expect that their members of Parliament will be held to the same standard as ordinary citizens in relation to the commission of a criminal offence.

“No citizen should be above the law,” she said. “This office cautions against the practice of obtaining private citizens’ correspondence and tabling them in the House of Assembly. This, in my view, is a most dangerous trend and opens up the society to chaos.”

“Citizens,” she said, “have a right to expect that their private communications would enjoy the protection afforded them under the laws of the country.”

In her opinion, the data protection issue concerns “whether anyone gained unauthorised access to the said private e-mails before they were tabled in the House of Assembly”. This, of course, is for the police to discover. In a joint statement Mitchell and Fitzgerald said they were not a party to any “unauthorised access to e-mails”. The matter, they said, had been sent to the House Committee on Privileges. This probably is its state funeral, unless the Opposition does its job and follows the burial procession to prevent a quiet interment.

It is indicated under section 23 of the Data Protection Privacy of Personal Information Act that a person who obtains personal data without the “prior authority of the data controller or data processor by whom data are kept and discloses the data or information to another person, shall be guilty of an offence”.

Mrs Farringotn-Austin said she had confidence that “the commissioner of police and his team would have put the relevant and necessary questions to the parties and is conducting its investigation as to how the said information was obtained,” adding that her office would cooperate with the police.

Mrs Farrington-Austin is to be congratulated for doing her job. She could have easily taken the coward’s way out — as do most officials in this country – and remained silent. After all she had no jurisdiction over the conduct of parliamentarians — which she acknowledged — and noted that the persons whose private documents had been exposed had made no complaint to her. Instead, they went straight to the courts for a stop order. However, she did not know this.

Despite the fact that she could do nothing about parliament because of parliamentary privilege, she let parliamentarians – Mr Mitchell included – know in no uncertain terms that “members of the public expect that their members of Parliament will be held to the same standard as ordinary citizens in relation to a criminal offence.” It was left to the police to determine whether a criminal offence had been committed.

It is a long-established principle that no one is above the law, including MPs and by “hiding behind parliamentary privilege the parliamentarians are bringing their office into disrepute”.

We agree with Mrs Farrington-Austin that the exposure in the House of private citizens’ correspondence is “a most dangerous trend that leaves society open to chaos”. This offensive behaviour is what her department was established to prevent. We salute her for being brave enough to stand up in this cowardly society and doing her job.

It is now up to the public to make certain that she suffers no political consequences for her fearless statements.