The Tribune

By NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

GOVERNANCE reformers yesterday urged the Government to go beyond simply bringing the Freedom of Information Act into effect by “creating a system that people will actually use and trust”.

The Organisation for Responsible Governance (ORG), while hailing the release of the Freedom of Information Act’s (FOIA) regulations for public consultation, argued that “the central test” whenever these come into force to accompany the 2017 Act will be whether regular Bahamian citizens can “use the system easily, affordably and confidently” to understand government activities that impact them.

The other side of this, the advocacy group argued, is that the Government and public authorities must “have the capacity and clear rules needed to respond consistently” and not simply ignore, neglect or stonewall valid Freedom of Information requests for no legitimate reason.

And, going beyond the regulations themselves, ORG said it is vital that the Government provide the necessary funding, staffing and other resources, and training to permit the Freedom of Information Act and accompanying regulations that give it teeth to be fully implemented.

Praising the Davis administration’s “important and long-awaited” step in publishing the regulations, and seeking to move the Freedom of Information Act beyond merely just a law to something that is “usable” and practical, ORG said: “The Bahamas is closer than it has been in years to making Freedom of Information a practical reality. That progress should be acknowledged.

“The objective now should not simply be to bring regulations into force. It should be to create a system that people will actually use and trust. ORG’s position remains that Freedom of Information is not principally about catching government doing something wrong. It is about changing the relationship between citizens and public institutions.

“It allows a parent to understand how services are allocated. A journalist to examine a public decision. A business owner to better understand procurement. A community to scrutinise a development affecting its environment. A researcher to examine public policy. And an ordinary citizen to ask a question about how public money or public authority is being used,” the governance reform group added.

“As ORG has previously noted, access to information supports informed participation, public trust, better public services, fairer economic opportunity and stronger accountability. The most effective Freedom of Information regime will, therefore, not be the one that processes the greatest number of forms.

“It will be the one in which more information is routinely available, requests are simple, responses are reliable, exemptions are carefully applied, appeals are credible and citizens increasingly understand that public information belongs to the public unless there is a legitimate reason for withholding it. That should be the standard against which the final 2026 regulations are judged.”

ORG, in its analysis of the draft regulations, cited several areas that the Government had got right including numerous ways to submit a Freedom of Information request via online systems, e-mail, direct deliver and other appropriate methods. The regulations, which it examined by benchmarking other jurisdictions, also scored well in areas such as tracking requests, locating records and files, and the assistance offered to applicants.

However, it also identified what it described as key areas for improvement, including the need to keep the process as simple as possible by not being overly prescriptive in demanding that all information requests by accompanied by government identification.

“The draft currently requires every application to be accompanied by a copy of government-issued identification, and requires the information manager to record the type and number of that identification,” ORG said.

“ORG recommends that this provision be reconsidered. The Act itself requires an application to be made in writing, directed to the information manager, and to provide enough information to allow the record to be identified. It also explicitly states that an applicant does not have to provide a reason for requesting the record.

“There is a legitimate reason to establish identity in some circumstances. The Act defines who has the general right of access, and identity obviously matters when someone requests their own personal information. However, requiring a copy of a passport, driver’s licence, NIB card or voter card for every ordinary Freedom of Information request creates several risks,” ORG warned.

“It may discourage requests from people who are uncomfortable transmitting identity documents electronically; creates additional personal data that government must securely store and protect; may disproportionately affect people with limited access to current identification; and can create an unnecessary perception that citizens are being identified or tracked simply because they asked a question of government.

“The Cayman regulations offer a useful distinction: Proof of identification is explicitly required when a person applies for their personal information.” ORG recommended that personal identification only be required in certain situations, such as when personal records are requested.

Also urging that the regulations establish a clear fee schedule, ORG called for response times to Freedom of Information requests to be “clear, consistent and user-friendly”. It added: “The draft provides useful operational timelines.

“Applications received by another officer must reach the information manager within three working days, acknowledgement is required within ten days, transfers must be communicated within ten days, and once applicable fees are paid an authenticated copy must be provided within 14 days.

“The underlying Act provides the overall response period of 30 days, with a possible extension where reasonable cause exists. ORG has consistently emphasised that refusals, deferrals and extensions should include reasons and information about the applicant’s options,” the group added.

“ORG recommends a single, simple public-facing timeline showing exactly what applicants can expect from day one through completion or appeal. Ten days to acknowledge receipt may also be longer than necessary in a modern electronic system.

“If applications are submitted online or by e-mail, an immediate automated acknowledgement should be feasible, followed by formal validation if necessary. The citizen should never be left wondering whether a request has entered the system.”

And, calling for the revived Freedom of Information Act effort to be accompanied by more than just regulations, ORG warned: “The final regulations can be well drafted and still fail if implementation is under-funded. ORG therefore continues to emphasise that enactment should be accompanied by the practical infrastructure required to make the system work.

“ORG’s 2024 position paper identified insufficient funding, lack of fully trained information managers and insufficient public awareness as central implementation risks. The draft itself now creates significant responsibilities for the FOI Unit: Training, implementation monitoring, advice, public education, stakeholder engagement, statistical analysis, guidance documents and co-ordination. Those functions require actual people and resources.

“A serious implementation package should therefore include adequate multi-year funding for the FOI Unit and Office of the Information Commissioner; trained information managers across all participating public authorities; standard operating procedures and templates; modern records management and request tracking systems; accessible Family Island pathways; staff training; and a sustained national public education programme. Public education cannot begin after implementation. It should be part of implementation.”