FIVE YEARS after we were promised that legislation would be enacted giving the Bahamian people the right to information about how our money was being spent, how contracts were being awarded, the status of our applications for Crown Land, we still have no Freedom of Information legislation.
However, at last, we are getting closer.
On December 14, Minister of Education, Science and Technology Jerome Fitzgerald, under whose portfolio the drafting of the legislation rested, tabled the Freedom of Information Bill 2016 in the House of Assembly. Sources say the Bill may be debated as early as tomorrow. That would maintain the timing the Minister pledged when in his early days in office, stating that the Progressive Liberal Party government would pass a Freedom of Information Act during the latter part of its term.
The fact that we are drawing closer to transparency is a plus though we doubt that the culture shift that will have to occur for true transparency will happen overnight. For decades, this has been a country that valued - and even legally protected - confidentiality. We enjoyed it in our banking laws and in our daily lives, free from prying eyes. What was fair for us as individuals and those whose assets we managed was acceptable for governments as well. It was only as we began to question how a development that would destroy fragile coral reefs got approval without consultation, or how nearly a billion dollars of Value Added Tax money was being spent or what kind of incentives were granted to re-start Baha Mar that the demand for information became louder and more widespread.
Where hush-hush handshakes and secrecy were once sacrosanct, public outcry blew the lid off closed-door deals, demanding an end to contracts that gave away the people’s land, Crown Land, and offered other incentives that the people of the Bahamas had no right to see. The age of transparency had dawned.
The demand for information - even questioning a Cabinet minister’s assertions - was a new phenomenon. If the people found their voice, they also began scrutinising what they were being offered as Freedom of Information. Despite Minister Fitzgerald’s assertions that there was a disappointing contribution to public debate, we can only believe he was referring to presence at town hall meetings as the groups that submitted specific recommendations represented what has been estimated at more than 100,000.
Now is the moment to get the Freedom of Information Act right. Experts who have studied it thoroughly and compared it to legislation in other open democracies say the new 2016 version is an improvement over the 2015 Bill. Yet, there are three serious flaws and one outstanding matter.
The first recommendation agreed by 21 business, civil society and environmental organisations that was not included and should be amended is the existence of an independent Information Commissioner. This individual, who has ultimate authority over what can or cannot be released after requests go in to various departments, should in no way be beholden to the governing party. Freedom of Information legislation is only as good as those who administer it and their hands must not be tied nor their decisions quieted by those seeking their own political fortune or future.
Secondly, the Bill in its present form excludes non-statutory bodies, a vast arena of entities including public-private partnerships, joint ventures that do business with government and consulting bodies whose decisions impact granting of permits or right to conduct business. As it stands, the current Bill eliminates the right to information from BTC, BPL, NAD, APD and even the BEST Commission.
Thirdly, the length of time for both answering a request and for declassification of information must be shortened. The current Bill allows for up to 104 days in certain circumstances to advise whether information will be provided. One of the experts said that when he sought information in a remote area of Georgia (in the former Soviet Union) for a project he was working on, he had not just the answer but the information itself in less than one week. The experts also suggest 15 years rather than 30 years for declassification of sensitive information.
There will be times that information cannot and should not be revealed because of national security but we also know that the words ‘national security’ can be abused.
The fourth matter is a date for enactment. If the Bill passes without a date for enactment, it is merely another promise, a pile of papers occupying space but not history.
This is a great opportunity to ensure that the Bill that becomes an Act carries procedures and regulations, not just policy platitudes and contains the salient points that make it a true freedom of information act.