Dear Editor,
Guyana’s Access to Information Bill 2011 sets out a practical regime securing the right of persons to access information under the control of public authorities. Guyana has astutely followed in the tradition of over 80 countries globally, which established a broader right of access to ‘information’ rather than merely ‘documents.’ At its core, the public policy and legislative purpose underlying this Bill is a desire to promote democratic principles: government accountability and transparency.
To briefly highlight the significance of such legislation, the IACHR notes that “the importance of an effective right of access to information has a solid basis in international and comparative human rights law…there is a growing consensus that governments do have positive obligations to provide state-held information to their citizens.” The OAS, UN and OSCE all agree that “the right to access to information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation… based on the principle of maximum disclosure.” As such, this Bill is a respectable effort on the part of our government to secure a globally recognized fundamental right.
Because Guyana’s Bill reflects a product of comparative legislative analysis (mainly Trinidad, Jamaica, Belize, Canada, and the United Kingdom) it is insightful to recognize meaningful distinctions.
It is clear that Guyana’s “Interpretation” section, setting forth pertinent definitions, is more expansive than Jamaica’s, which has no definitions for “Applicant,” “Designated Officer,” “Minister,” “Personal Information,” “Prescri-bed” and “Public Authority.” Our government’s inclusion of such definitions helps resolve procedural difficulties such as ambiguity, since they are highly relevant in applying the right. Moreover, Guyana’s definition of “public authority,” a key governing definition, is more expansive than Jamaica’s, including several entities absent from Jamaica’s. By subjecting such a broad range of entities to the Bill’s ambit, including several legislative and judicial auspices, our government has made a respectable effort to enhance and promote transparency and accountability.
Guyana’s “Object of the Act,” which sets forth the primary objectives of the Bill, notes the importance of exemptions to protect “private and business affairs” whereas Jamaica mentions only “public interest.” This is a commendable effort by our government to effectively balance the general right of access to information against a wider range of compelling, competing interests. Belize does not specify any specific objective; however this is more of a procedural/structural error rather than substantive.
The Government of Guyana’s creation of a Commissioner of Information to oversee the implementation and regulation of this Act follows and builds upon the practices in Canada and the UK, and is a unique innovation in this region. Belize and Trinidad instead, vest these powers in an Ombudsman. In so opting, our government has more effectively anticipated problematic instances which accompany this right and has reasonably counterbalanced these by providing for a more central role for the commissioner in contrast to Trinidad’s minor role for its ombudsman. For instance, the commissioner has the authority to secure compliance with the Act, to compensate for losses/detriments, to request disciplinary action, and to make recommendations for reform to this Act. Even so, pursuant to Section 43, a person aggrieved by the commissioner may apply to the High Court for judicial review. This is a noble effort on the part of our government to temper unfettered discretion on the commissioner’s part, which is in furtherance of democratic notions of separation of powers and checks and balances.
The Bill requires the commissioner to: (1) publish statements of organizational particulars, categories of documents possessed, materials prepared by the public authority, procedures etc, in the Gazette and in a daily newspaper (Section 8); (2) publish statements specifying the categories of documents that are available in the same (Section 9); and (3) publish reports or statements containing the advice or recommendations of several bodies, reports by experts, consultants, or within public authorities etc, in the same (Section 10). Moreover, Section 44 requires the minister to prepare annual reports on the operation of this Act to be laid in the National Assembly. These four sections complement each other and are indicative of promoting accountability and transparency, thereby enhancing the opportunity for the full realization of the right to access information. Guyana requires considerably more public disclosure than Jamaica, which merely requires publication of an “initial statement.” Belize’s comparable sections are less comprehensive since Guyana lists several statements to be published which are absent from Belize.
Moreover, some of these sections above are altogether absent from Jamaica and Belize.
Section 13(1) and (5) places an onus on public authorities to make information electronically available via websites, etc. Aside from being a novel requirement, nonexistent in most contemporary legislation, this section, acting together with other similar government undertakings such as the One Laptop Per Family Program, provides an extraordinary opportunity to maximize access to information.
Pursuant to Section 15, where documents are otherwise publically available (public register, for purchase, National Archives), access to such shall be had in accordance to those arrangements and not under this Act. This caveat is in conformity with most other nations, all of which agree that public authorities should not have to make documents available which are readily accessible by other means since it unnecessarily burdens the right to access information, by squandering scarce administrative resources. Still, this section is more inclusive than Belize’s since it lists more documents, suggesting that our government carefully scrutinized documents to which this Act should not provide access.
The procedure to request access is a relatively straightforward, simple process, governed by Section 16. Guyana’s procedure is less stringent than Belize’s, which requires a written request as set out in its Schedule, whereas in addition, Guyana allows requests as set out on the website of, or by other electronic means to, the commissioner. This reasonable approach by our government, expanding the scope of request methods suggests tolerance, which is essentially in the interest of fairness. Also, unlike Belize, Guyana allows an applicant to specify in which form they wish to be given access. Permitting an applicant to so specify the form of access suggests a policy for maximizing public expectancy and preference, which again, militates in favour of the full realization of accessing information.
Section 17, requires the commissioner to assist applicants, by taking reasonable steps to help an applicant make a compliant request. This is a very liberal policy, indicative of our government’s sincere, good-faith efforts to effectively guarantee the right to access information to as many applicants as possible, since in essence it allows for the resubmission or correction of a non-compliant request.
Wholly absent from Jamaica and Belize, but present in Canada, is a comparable section to Section 25, which permits the commissioner to refuse access where the work would substantially and unreasonably divert the resources of the public authority. Although this section may potentially restrict the right to access information, it is necessary to promote such right, since it efficiently balances that right against legitimate competing concerns such as scarce time and monetary resources.
Sections 27-37 lists certain exempt documents which are narrowly tailored to efficiently balance the right to access information against compelling and overriding concerns justifying their exemption: (1) Cabinet documents; (2) documents likely to prejudice the defence of Guyana; (2) international relations documents; (3) internal working documents; (4) law enforcement documents; (5) documents affecting legal proceedings; (6) documents affecting personal privacy; (7) documents relating to trade secrets; (8) documents containing material obtained in confidence; and (9) documents affecting the economy, commercial affairs and operations of a public authority. The documents exempted are consistent with and indicative of contemporary analogous legislation globally. Moreover, in most instances, our government’s exemptions are more comprehensive, definite, expansive, practical and efficient, by providing for a wider range of exemption, restricting the scope of exemption in the interest of fairness, mitigating likely ambiguity and anticipating reasonably foreseeable problematic concerns.
Penalties are laid out in Section 50, for: (1) willful destruction; (2) knowing destruction; (3) unlawful possession of exempt documents; (4) altering, defacing, obliterating, erasing, destroying or concealing a document given access to; (5) obstructing the commissioner; (6) disclosure of exempt documents; and (7) publishing exempt information.
It is clear that Guyana has provided for both a wider range of punishable offences as well as stricter penalties for their violation than Trinidad, Jamaica and Belize. In so doing, our government has admirably anticipated likely situations which threaten to disrupt the administrative framework and stability of affording the right to access information.
Indeed, those critical of our government will and clearly have attempted to detract from and diminish the meritorious efforts of the government’s sincere, good-faith attempt to secure for our nation, the globally recognized fundamental right of access to information. These attempts, as most of their other similarly situated discord is to be disregarded as propagandistic vitriol, void of any modicum of propriety or analytically structured dissent. I have diligently analyzed the chief opposition’s proposed Act, which, save a few minor insertions and deletions, bears a strikingly similar semblance to Trinidad’s entire Act, to the extent of being ripe for characterization as legislative bootlegging!
Our government’s opposition will likely rely on describing the non-retroactivity of this Act as a material defect, in an effort to convince the public that this Act is not appropriate to secure the right. Such reliance is misplaced and unavailing, primarily because our government has a compelling and overriding interest in maximizing efficiency and effectively guaranteeing the right to access information by alleviating unnecessarily burdensome requirements imposed by retroactive application. Moreover, the opposition cannot in good faith expect retroactivity where many official documents and information prior to our current government’s administration of Guyana, are strangely missing or otherwise unavailable.
In the end, what cannot be denied is that this Act is a progressive piece of legislation which conforms to and builds upon many globally recognized trends with respect to the right to access information and which effectively and efficiently balances that right against legitimate, competing interests which justify the restriction of the same.
Yours faithfully,
Cheddi Jagan II
