“I thank God, we have no free schools nor printing; and I hope we shall not have these hundred years; for learning has brought disobedience and heresy and sects into the world; and printing has divulged them and libels against the government. God keep us from both.” (See Herbert Foerstel – 1999 – Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act, Greenwood Press, London)
Not only has god not protected, Governor Berkeley, the 17th century ruler of Virginia who wrote these words, from learning and printing, but s/he has now insisted that governments must provide their entire populace with the “libellous” means. But the Governor’s rumination with his lords and commissioners and our own condition in Guyana are indicative both of the distance we have travelled and the work that must still be done to arrive at a politically open environment and more specifically, at effective freedom of information legislation.
According to Freedom of Information Around the World 2006, 70 countries had FOI legislation; today about 80 have. Sweden is said to have had it since 1766, but here we will focus on the origins of the progenitor of the current law: the US Freedom of Information Act passed in 1966. In the Caribbean, only four countries, Antigua and Barbuda, Belize, Jamaica and Trinidad and Tobago are recorded as having FOI legislation but others may have introduced it since 2006. The laws are generally titled “Freedom of Information Act” and this is the case in the Caribbean. The Canadian law is designated “Access to Information” and unlike some, I would not place much emphasis on what our law is actually called, although it is quite amusing to imagine that the present occupants of ‘Freedom House’ have developed an aversion to ‘freedom’!
Current FOI legislation has resulted from a long and arduous struggle for the right of citizens to know about and criticize government activities. The formative stage of this struggle was for freedom of the press, and the recent situation between the government and CN Sharma, where the former has claimed that the latter felt the need to “curry favour” with it and Mr. Sharma has said that he is willing to be “a yes-man” to save his station, demonstrates that, in its crudest form, that struggle for media freedom is still very relevant in Guyana.
The United Kingdom Freedom of Information Act was only fully implemented in 2005, some 40 years after its American counterpart, but the American fight for the citizen’s right to know is rooted in seventeenth- and eighteenth-century England and the press’s struggle to be allowed to report the activities of the establishment. The 1275 English law on sedition was designed to censor speech and the press, stating that “henceforth none be so hardy to cite or publish any false news or tales whereby discord or occasion of discord or slander may grow between the king and his people or the great men of the realm.” Of course, almost any critique of the government could be construed as sowing discord and many Englishmen were executed and imprisoned.
Things were no different in the American colonies. In the late 17th century a Maryland law banned “all speeches, practices, and attempts relating to his lordship and government, that shall be thought mutinous and seditious.” The punishments for violation of that law were whipping, branding, boring through the tongue, fines, imprisonment, banishment or death. In 1725, New York’s first newspaper, the Gazette, was established by William Bradford and within a month of its first publication, he was jailed for wicked and seditious libel.
As opposition to British rule in the American colonies grew, so too did more liberal views on the citizen’s right to know. In an unsigned essay in the Boston Gazette in 1765, the young John Adams (the second president of the United States) declared that the most effective opposition to British rule was knowledgeable citizenry, claiming that “The people have a right, an indisputable, inalienable, indefeasible divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers…“ Thus the men who drafted the American Constitution, believed that individual rights (one of which was information) were natural and inalienable, and so much so that some even considered the adoption of the Bill of Rights of 1789 as irrelevant and even dangerous.
The journalist Alan Barth contended that, “The men who established the American Republic sought censorship of government by the press rather than censorship of the press by the government” (Foerstel).
The American Constitution does not directly grant the public the right of access to information about the government but the courts have taken the view that it was the long struggle of the English people “to establish and preserve the right . . . to full information in respect of the doings or misdoings of their government” that resulted in the adoption of the First Amendment. The battle for press freedom continued over the century and by 1936, in the case of Grosjean v. American Press Co., Justice George Sutherland claimed that “since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.”
After numerous cases in which the US Supreme Court addressed the issue of the ‘right to know’, legislative action was thought necessary and in June 1955 the House Subcommittee on Government Information was established in the light of charges being made that government agencies were withholding information from the media, researchers and even congress. The founding statement concluded that “An informed public makes the difference between mob rule and democratic government. If the pertinent and necessary information on governmental activities is denied the public, the result is a weakening of the democratic process and the ultimate atrophy of our form of government” (Ibid).
It was essentially the work of this committee and powerful and activists, journalists and others that resulted in the signing of the first Freedom of Information Bill by President Eisenhower in August 1958. Some sections were however loosely drawn, enabling officials and departments to circumvent the law, so lawmakers made a second try and the Freedom of Information Act was signed by President Lyndon Johnson in July 1966.
The 2006 Freedom of Information Around the World report claimed that “There is much work to be done to reach truly transparent government. The culture of secrecy remains strong in many countries. Many of the laws are not adequate and promote access only in name.” Effective modern information regimes impose on governments a duty to inform and create a culture that applies a presumption in favour of openness. Guyana has begun the move towards freedom of information with the Access to Information Bill 2011 but it remains to be seen to what extent the current suffocating information environment could promote the purposes of FOI legislation.
