FOI Act

Freedom of Information Act. Last Monday, Elkin Richardson hosted the Hon Chief Minister on his radio call-in programme “To the Point”. He treated him with all the respect that is his due as the head of our government. At no time did Elkin or any of the callers challenge the Hon Chief Minister, even when he said the most outrageous thing.

One particular exchange caused me concern. It is the subject of this post. Elkin asked the Chief Minister if he did not think it was time for the introduction of a Freedom of Information Act. The Chief Minister sounded as if he had been stunned by this question. He eventually replied with words to the following effect. “But, Elkin, you know that my government does not censure the news. Any radio or any newspaper in Anguilla is free to publish anything at all that they want. We do not need any Freedom of Information Act”. From which it became apparent that the Hon Chief Minister did not have the slightest idea what a Freedom of Information (FOI) Act is. I have kept quiet on the issue up to now. I wanted someone else to do the necessary explaining. However, I have not seen any newspaper, nor have I heard any radio station, attempting to clear up the matter. So, I am obliged to do so now, at the risk of appearing to pick on the chief minister.

The first point is that an FOI Act does not guarantee freedom of the press or freedom from censureship. That freedom is already guaranteed by law. The Constitution contains in section 11 all the guarantee of freedom of expression that we will ever need. We do not need an FOI Act to give that to us.

Freedom of information legislation is also sometimes called “open records” law. In the US it is described as “sunshine” law. The FOI Act is a law which sets rules on access to information or records held by government. Such laws define the legal process by which government information is required to be available to the public. Sweden’s Freedom of the Press Act of 1766 is thought to be the oldest of such laws. Today, over 70 countries around the world have it. Each State of the United States has its own law governing access to public documents of state and taxing entities. That is in addition to the FOI Act which governs records management of documents in the possession of the federal government. Other countries, particularly British Overseas Territories, are working towards introducing such laws.

What FOI legislation does is to alter the burden of proof. Any citizen can find out what is on any file in which he is interested. The burden of proving that the matter should be kept confidential rests on the person who argues that it must be kept confidential. The assumption is that the public has a right to all information kept by government. You have the basic right to ask for and to obtain the information. You do not even have to give a reason why you want the document. But, if the information is not disclosed, a valid reason has to be given. If the reason is unacceptable, you can take it to court for the court to rule on it.

In many countries with FOI legislation, “privacy” or “data protection” laws may be part of the freedom of information legislation.

A related concept is “open meetings” legislation. This allows public access to government meetings, not just to the records of them. In some British Overseas Territories, meetings of the Land Development Commission and even of Executive Council are open to the press and public, within reason. In Anguilla, by contrast, everything done by every government agency is shrouded in secrecy.

Under our present system, each public servant swears an oath under the Official Secrets Act on becoming a public servant. It is this oath which is probably the cause of the problem that this legislation seeks to cure. By this oath of secrecy, the civil servant essentially swears never to reveal to anyone any matter that he or she learns about in the course of his or her duties. Everything in government becomes secret. This secrecy is then used as a cover for committing acts of prejudice and injustice upon the ordinary citizen. A public servant can put a false and prejudicial note on anyone’s file that will forever stop that person from progressing, in the sure knowledge that the victim will never get to find out about it. The result is that the island is overrun by half-crazed theories about what is going on in government.

I hope that the next time Elkin asks about the Freedom of Information Act, he will not be satisfied with an answer that is completely unrelated to the question.

Related previous posts:

Freedom of Information: Guest Editorial 5

Land Development Control Committee

Open Government

Too Much Information Can Be Dangerous for your Health