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Tuesday 22 October 2019
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Whither freedom of information?

Photo courtesy Pixabay
Photo courtesy Pixabay

RECENT court rulings have confirmed deficiencies in the operation of the Freedom of Information (FOI) Act. These rulings shine a light on the need for public authorities to engage in a radical culture-change, one in step with the demands of 21st century civic life.

We have always been a society that prefers secrecy to the sharing of information, especially from the top down. The aim of the FOI was to hand the ordinary citizen an advantage when it comes to the affairs of powerful state entities. Anyone could apply for information using the designated forms in a process that seemed straightforward. And yet, that’s not how things have gone in practice.

Lengthy delays often effectively frustrate applications, particularly in the context of requests from members of the media. Information would often be disclosed, but so late as to no longer be relevant or in a manner that it’s overtaken by other forms of disclosure. To some extent, stretching the timeline out to its limits came to be regarded as a filibustering tactic, undermining the aim of the act which is to create a general right of access to information.

Another perceived risk of abuse was the act’s wide exemption clause which gave the State the advantage of being able to cite grave policy reasons for refusal without providing any evidence to back up those claims. And since not every applicant has a pool of pro bono lawyers behind them, the simple refusal of an application has also been another ploy. The sheer expense of legal action has shut down many basic queries.

The Privy Council ruling in the case involving Petrotrin’s refusal to disclose documents rightly points out the many public interest matters that should be weighed by authorities before they decide to block an application for exempt documents. Separately, High Court Judge Frank Seepersad’s call on Thursday for the State to provide evidence to explain exemptions strikes a chord surrounding the need for greater transparency in public life.

Prime Minister Dr Keith Rowley’s announcement of a new process in which the Ministry of the Attorney General will now review FOI applications to avoid needless waste is welcomed. However, such processes should not result in delays. Nor should there be duplication given that most public bodies already have paid lawyers reviewing these applications.

And while it is laudable Rowley has called on a minister to issue a directive to release relevant documents, it must be asked: why does it have to take a prime minister and a minister to intervene? What stopped the materials being disclosed all along? The real issue here is our culture of secrecy.

In this regard, despite these court rulings, we need to address the proliferation of confidentiality clauses and confidential arbitration processes in public affairs if we are to truly progress.

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