Access to information on government programmes and activities is a fundamental right of all citizens. It is an essential element of every system of democracy and facilitates transparency and accountability, indeed good governance practices. Jamaica has an Access to Information Act that was passed in 2004 and so does Trinidad and Tobago whose Freedom of Information Act dates 
back to 1999. Both pieces of legislation have similar provisions with the added safeguard of the right of citizens to recourse to an Appeals Tribunal in the case of Jamaica, or to the Ombudsman with further recourse to the High Court in the case of Trinidad and Tobago, if the information requested is denied. In both jurisdictions, there is no Commissioner of Information, and it is the responsibility of individual public agencies to make available relevant information to the public and to respond to requests for information.
Today, we begin an examination of Guyana’s Access to Information Act.
Objectives and scope
The Access to Information Act was passed in the National Assembly on 15 September 2011 and was assented to by the President on 27 September 2011. However, it was not until May 2013 that the Commissioner of Information was appointed, thereby bringing the Act into operational effect. The Act sets out a practical regime of right to information for persons to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of the Government and public authorities. It extends the right of members of the public to access information by:
(a) creating a general right of access to information in documentary form in the possession of public authorities limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by public authorities; and
(b) making available to the public, information about the operations of public authorities and, in particular, ensuring that the authorisations, policies, rules and practices affecting members of the public in their dealings with public authorities are readily available to persons affected by those authorisations, policies, rules and practices.
The Act lists the following entities as having constituted public authorities:
(a) the National Assembly, inclusive of parliamentary committees subject to the Standing Orders;
(b) the Caribbean Court of Justice, the Court of Appeal, the High Court, the Income Tax Board of Review or a Court of summary jurisdiction. However, in relation to judicial functions, a court or the holder of a judicial office or other office pertaining to a court in his/her capacity as the holder of that office is not considered a public authority;
(c) the Cabinet;
(d) a Ministry or a department or division of a Ministry. However, the disciplined services in relation to their strategic or operational activities shall not be regarded as public authorities;
(e) Local Democratic Organs established under the Municipal and District Councils Act, Local Government Act, Local Democratic Organs Act;
(f) a Regional Health Authority established under the Regional Health Authorities Act 2005;
(g) a statutory body, responsibility for which is assigned to a Minister;
(h) a company incorporated under the laws of Guyana which is owned or controlled by the State;
(i) a Constitutional Commission or any other Commission established by law; or
(j) a body corporate or an unincorporated entity which: (i) exercises any function on behalf of the State; (ii) is established by or on behalf of the State; or (iii) is supported, directly or indirectly, by Government funds and over which Government exercises control.
The Act does not apply to the following:
(a) the President, provided that the functions of the Office of President (now Ministry of the Presidency) shall not be exempt for the purposes of this Act;
(b) a Commission of Inquiry established by the President, or information obtained or created in the course of an investigation, examination or audit conducted by or under the authority of the Auditor General, until the investigation or audit and all related proceedings, if any, are finally concluded; and
(c) a public authority or function of a public authority as the President may, by order subject to negative resolution of the National Assembly, determine.
Appointment and duties of the Commissioner
The Commissioner of Information is appointed by the President from among persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. His/her salary, allowances and other conditions of service are determined by the Minister responsible for information. Contrary to the belief of some persons, the Commissioner is not the holder of a constitutional position.
The Commissioner acts as a clearing house for processing requests. It is unclear why our legislators opted for this centralized model as opposed to a decentralized one whereby individuals and organisations can approach government agencies directly instead of the Commissioner. By the time the information is made available, its relevance for decision-making and other purposes may very well be lost. This notwithstanding, Act vests with Commissioner the power to require a public authority to take any steps as may be necessary to secure compliance with the provisions of the Act, including:
(a) providing access to information, if so requested, in a particular form;
(b) publishing certain information or categories of information that are needed urgently and are not published under any other provisions of the Act;
(c) making necessary changes to its practices in relation to the maintenance, classification, management, retention and destruction of records;
(d) enhancing the provision of training for its officials on the right to information; and
(c) providing the Minister with an annual report.
Other responsibilities include:
(a) requiring a public authority to compensate the complainant for inconvenience suffered;
(b) requesting and examining any disciplinary action taken against any officer in respect of the administration of the Act;
(c) indicating efforts by the public authorities to administer and implement the spirit and intention of the Act;
(d) making recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernization, reform or amendment to the Act or other legislation or the common law; and
(e) addressing any other matter relevant for operationalizing the right to access information.
Appeal against decision of the Commissioner
Any person aggrieved by a decision of the Commissioner may apply to the High Court for a review of that decision. This is quite unlike Trinidad and Tobago where recourse is to the Ombudsman in the first place, then to the High Court. In Jamaica, an Appeals Tribunal hears cases of denial of access to information and there is no provision for recourse to the Courts. It would be fair to state that in most cases aggrieved persons would be reluctant to approach the Courts because of not only the high legal costs involved but also the length of time it may take for a ruling to be made.
Removal of Commissioner
The President may remove the Com-missioner of Information from office if the Commissioner: (a) is adjudged an insolvent; (b) has been convicted of an offence which involves moral turpitude; (c) is unfit to continue in office by reason of infirmity of mind and body; or (d) had or has acquired such financial or other interest as is likely to affect prejudicially his functions as Commissioner of Information. The Act is, however, silent on the Commissioner’s tenure of office, and at what point in time he/she is required to demit office. In the case of the holders of constitutional offices, such as the Auditor General and High Court judges, the incumbent is required to demit office on the attainment of age 65.
Annual reports
In accordance with Section 44 of the Act, within nine months of the close of each year, the Minister responsible for information is required to lay a report in the National Assembly on the operations of the Act. Ministers having specific responsibility for individual public authorities must furnish the Minister with such information he/she may require for the compilation of the report which shall include the following:
(a) number of requests made to the Commissioner of Information;
(b) number of decisions that an applicant was not entitled to access information, citing the relevant provisions of the Act;
(c) number of applications for judicial review of decisions and the outcome of such reviews;
(d) number of complaints made to the Commissioner in respect of the operations of the Act and the nature of such complaints;
(e) number of notices served upon the Commissioner under Section 11(1) of the Act and the number of decisions by the Commissioner which were adverse to the person’s claim;
(f) particulars of any disciplinary action taken in respect of the administration of the Act;
(g) amount of fees collected by the Commissioner under the Act;
(h) particulars of any reading room or other facility including official websites provided by each public authority for use by applicants or members of the public; and
(i) any other facts which indicate an effort by public authorities to administer and implement the spirit and intention of the Act.
Next week we shall seek to ascertain conclusively whether such an important report was compiled and presented to the Assembly since the passing of the Act in 2011 and the appointment of the Commissioner of Information. So far, a search on the Assembly’s website did not turn up any evidence that such a report was laid. In the circumstances, any assessment of the effectiveness of the Act could not be determined.
