The road leading to the FOIA

The initial Freedom of Information Act in The Bahamas was passed in 2012, but never enacted. Following this, the Christie Administration released an updated draft legislation to replace the 2012 Act. The draft legislation, which was the Freedom of Information Bill, 2015 (the “2015 Bill”), was subsequently circulated for public consultation.

A committee comprising of representatives from the Office of the Attorney General, the Ministry of Education, Science and Technology, the University of the Bahamas (LL.B Department), the Archives and the Data Protection Commissioner was established by the government in June 2015 (the “FOI Committee”), to examine the provisions of the 2015 Bill and to determine whether changes would be recommended to Cabinet in accordance with other jurisdictions and international best practices.

In order to gather feedback and recommendations from the public on the draft 2015 Bill, the FOI Committee conducted public consultations and town hall meetings from April 2016 to July 2016 on the islands of New Providence (2), Grand Bahama, Eleuthera, Abaco and Exuma. During this time, a group of over 21 civil society and private industry organizations, representing over 100,000 Bahamians, came together and drafted a consolidated list of 30 recommendations to enhance the draft 2015 Bill (the “consolidated list”). These recommendations were then submitted to the FOI Committee and ultimately to Cabinet for consideration and approval. Out of the 30 recommendations included in the consolidated list, only seven were adopted by Cabinet and featured in a new Freedom of Information Bill, which replaced the draft 2015 Bill. The new Freedom of Information Bill was subsequently tabled in parliament on 14^th December, 2016 (the “2016 Bill”).

The 2016 Bill was then updated and enacted by parliament in 2017, creating the FOIA. The date of asset for the FOIA was 31^st March, 2017, just a few short weeks before the 10^th May, 2017 general election.

Since the enactment of the FOIA in 2017, only certain provisions of the Act have actually been brought into force, namely: Part I; Part V (sections 30, 32, 33, 34, 36, 37 and 38); and Part VIII (sections 57, 59, 60). Additionally, the whistle-blower provision in section 47 of the FOIA has been brought into force. All remaining sections of the FOIA, not mentioned, have not been brought into force, including Part II, among others, which covers the actual process for applying for and accessing information.

Given the above, the FOIA has not been fully brought into force to-date, or in other words the FOIA is not fully operational, despite being enacted since 2017. Such continued delay in bringing the FOIA into full force hinders the public’s fundamental right to information.

The benefits and importance of the FOIA

Freedom of Information legislation, sometimes called Right to Information legislation, is currently enacted and enforced in the majority of countries around the world.  These laws are very beneficial, as they provide information regarding the workings of government. In this regard, the importance of these laws is expressed by Transparency International, which states:

“Information is also power. Where it’s not freely accessible, corruption can thrive and basic rights might not be realised. People can hide corrupt acts behind a veil of secrecy. Those with privileged access to information can demand bribes from others also seeking it. People entitled to health or education may be denied these basic services due to lack of access to information about their rights. Governments can hide their actions by controlling or censoring the media. This prevents the facts being reported. The truth is gagged.”[1]

Therefore, the average citizen would need information in order to hold their government accountable and to make informed choices, regarding voting or decisions that the government make on their behalf. Essentially, the FOIA would allow the public to know what is going on in the affairs of their government.

[1] Transparency International, Access to Information: https://www.transparency.org/topic/detail/accesstoinformation

How would the FOIA work in practice?

Once fully brought into force and operational, the FOIA would grant the public with a general right to access records held by a public authority, which includes:

1. a government ministry or department;
2. a statutory body or authority, whether incorporated or not;
3. a public corporation which is wholly owned by the government or in which the government holds more than 50 per cent of the shares; or
4. any other body or organization that the Minister, with responsibility for government information, orders that the FOIA should apply to – such as, organizations that receive government appropriations on a regular basis, or organizations that provide services of a public nature.

Under the FOIA, a record is defined as information held by a public authority in connection with its functions, in any of the following forms:

1. a record in writing;
2. a map, plan, graph or drawing;
3. a photograph;
4. a disc, tape, soundtrack or other device in which sounds or other data are embodied; and
5. any film (including microfilm), negative, tape or other device in which visual images are embodied.

A person who wishes to obtain access to a record would have to make an application to a public authority which holds the record. All applications would have to be made in writing, via e-mail or facsimile, and addressed to the appointed information manager of the requested public authority. The application must provide information on the requested record that would be reasonably necessary to enable the public authority to identify it. It is important to note that, any person requesting access to a record from a public authority would not be legally required to give any reason for his/her request.

A public authority would have up to 30 days, after receiving an application, to respond. In this regard, a public authority is obligated to acknowledge receipt of every application made, once the application is made in the manner set out above. However, a public authority may extend the period for responding by an additional 30 days, in cases where there is “reasonable cause” for such an extension.

In addition to acknowledging receipt of an application in a response, a public authority would also have to assist the applicant in identifying the requested records. Where the information provided by the applicant is not reasonably adequate to identify the record, then the public authority would have to allow the applicant with an opportunity to reformulate his/her application so that the record can be identified.

If an application for access to a record is made to a public authority (the “originating public authority”) that is held by another public authority (the “relevant public authority”), the originating public authority must then transfer that application, within 14 days, to the relevant public authority and must inform the applicant of such transfer. The relevant public authority would then have 30 days to respond to the applicant, from the date of receiving the application from the origination public authority. However, this response may be extended for a further period of up to 30 days if there is “reasonable cause”.

Furthermore, a public authority has the discretion to defer granting access to a record if, among other things, it would be in the public interest to release the record after an event has occurred or a period of time has passed.

When a public authority refuses or defers the application or extends the response period, it must state its reasons for doing so, and provide the applicant with the options that are available.

It is important to note that certain records are exempt from being disclosed under the FOIA for up to 30 years, including the following records:

1. affecting security, defence or international relations of The Bahamas;
2. relating to law enforcement, i.e. records that may endanger a person’s life or safety or affect the conduct of an investigation or prosecution;
3. subject to legal privilege;
4. affecting national economy, commercial affairs and certain documents concerning the operations of public authorities;
5. revealing the government’s deliberative processes, such as opinions, advice or recommendations prepared for Cabinet proceedings;
6. that could prejudice the effective conduct of public affairs – i.e. if disclosure would likely inhibit the free and frank exchange of views for the purposes of deliberation;
7. relating to commercial interests, i.e. trade secrets or where the disclosure of the information would expose a commercial entity to a disadvantage;
8. that could result in the destruction of, damage to, or interference with, the conservation of any heritage site, endangered plants or animals, commercially important species, etc. (records in these instances are exempt for 75 years instead of 30 years);
9. relating to sensitive personal data; and
10. likely to endanger health and safety.

However, the disclosure exemption period would not apply to records in the abovementioned categories d, f, g, h and j, if it is considered that access to such records would be in the public interest.

In May 2019, the Attorney General indicated that the FOIA will “certainly” be brought fully into force before May 2020.[1] And most recently, on 17^th January, 2020, it was reported that the Attorney General stated that a contract for the refurbishment of a Freedom of Information Office was put out to tender.[2] These comments came days after it was announced that the Freedom of Information Office, which is referred to as the Freedom of Information Unit under the FOIA, will be located at the former Eugene Dupuch Law School Library Building.

Given the recent developments on the FOIA, ORG recommends that the government should undertake the following steps as soon as possible in order to ensure that the FOIA is fully brought into force and operational by May 2020:

1. appoint an independent, impartial and competent Information Commissioner, who will be responsible for establishing, operating and administering the Freedom of Information Unit;
2. provide the Freedom of Information Unit with adequate resources for the Information Commissioner to fulfill his/her mandate;
3. appoint and train information managers for the various public authorities; and
4. roll out a comprehensive public campaign to engage and educate the public on the benefits of the FOIA and how to utilize the process.

It is also important for all Bahamians to do their part by becoming well versed in the FOIA process, in anticipation of its full implementation, as it is a fundamental tool for holding a government accountable in any true democracy.

[1] Knowles, R., 2019. Bethel: Full FOIA by May 2020. The Nassau Guardian, [online] 7 May. Available at: https://thenassauguardian.com/2019/05/07/bethel-full-foia-by-may-2020/ [Accessed 29 January 2020].

[2] Knowles, R., 2020. Refurbishment contract for Freedom of Information Office out to tender. The Nassau Guardian, [online] 17 January. Available at: https://thenassauguardian.com/2020/01/17/refurbishment-contract-for-freedom-of-information-office-out-to-tender/ [Accessed 29 January 2020].