Remain vigilant to protect Access to Information


Remain vigilant to protect Access to Information

Jackson Miller

Friday, October 04, 2019

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We must not relax because the Government has announced that it will withdraw its resolution that would see an increase in the exemption period for public access to Cabinet documents from 20 to a whopping 70 years.

The very fact that this was contemplated is deeply concerning, and indicates the need for much greater vigilance on our part to prevent any more attempts to reduce public access to information. The very attempt was a backward step in our efforts at better governance and greater transparency and accountability.

That this is no time to relax is clear from the Government's statement on the matter, which indicates clearly that it has not actually backed down on its position. This can be seen in the announcement that the Government will be sending the Access to Information (ATI) Act, the Archives Act and the Official Secrets Act to a Joint Select Committee of Parliament and “have the very important issues raised in the public debate go straight to the Joint Select Committee for their consideration.” This is far from an unequivocal retreat.

The Government has said that the concern arose because of an ATI request that had been made for some Cabinet documents from the 1970s. I should say that this may very well have been a request which I made some time ago, and for which access has not been granted. However, that my request (if it is mine) or any other could justify a blanket 70-year ban is clearly ridiculous.

By way of context, the Access to Information Act, which was passed in 2002 and came into effect in 2004, has NEVER been amended. This despite a 2011 report from a Joint Select Committee of Parliament which reviewed the Act and made 18 recommendations for amendment. The report was produced after 16 meetings held over two years. Repeated calls by stakeholders, including by the Press Association of Jamaica, while I was president, for the proposed amendments to be passed into law have been ignored.

The only recommendation from the committee dealing with Cabinet documents was designed to INCREASE access, not reduce it. Stakeholders recommended to the committee that a public interest test should be applied to all exemptions, meaning that in determining which documents should be exempt from public disclosure, government authorities should be made to ask whether the public interest in disclosing the information was greater than the public interest in refusing access.

The Committee did not accept the idea of a general public interest test, but accepted that it should apply to more sections of the Act than it does now, and recommended that “a public interest test be applied to all exempt Cabinet documents after 10 years of their existence.” In other words, they recommended that Cabinet documents could actually be disclosed to the public after TEN years if disclosure was in the public interest.

What the Government was proposing goes against international standards and norms where the move is to increase access. In some countries there is what is called a 30-year rule, which relates to the release of archival records when they are 30 years old.

Britain has traditionally used the 30-year rule. Note firstly, however, that there is no blanket exemption for British Cabinet documents, as requests for access have to be subject to a public interest test (albeit that in the early years especially, the strong presumption will be in favour of withholding access). Also, since 2013, the British Government has been moving to reduce the 30-year period to 20 years for all historical records. Britain amended its Freedom of Information Act 2000 in 2010 to provide that generally documents become historical records after 20 years, when exemptions from disclosure no longer apply. This includes records dealing with Government policy.

Australia has also amended its Archives Act to provide that public access to exempt documents be reduced from 30 years to 20 years over a 10-year transitional period. The open access period for Cabinet documents is also being reduced from 50 years to 30 years.

Canada does not have a public interest test for Cabinet documents, and its Freedom of Information Act provides for a blanket refusal of access to Cabinet documents. However, that does not apply after 20 years.

In Trinidad and Tobago, there is only a 10-year exemption for Cabinet documents.

Why would this Government seek to pass an amendment that has been recommended by no one, not even a Joint Select Committee made up of parliamentarians very familiar with the workings of Cabinet? Why try to pass an extension completely out of line with standards in the Commonwealth?

The mere fact of the establishment of a Joint Select Committee of Parliament to examine the ATI and other Acts is not, by itself, necessarily all good news. Is there an intention to try to water down the Act to reduce public access? We have just seen one such attempt, highlighting the need for us to be vigilant throughout the sittings of this committee. It is laws like the Access to Information Act that have led to Jamaica's consistently high press freedom ranking.

Why is Jamaica now seeking to reduce access to historic records of the Cabinet?

This amendment must be opposed, and the Government must withdraw it.

Let's not throw Jamaica into reverse gear.

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