Vexed Bermoothes

Article 19 has published a commentary on the proposed Bermuda freedom of information bill (aka public access to information or PATI).

Article 19 is a highly-respected international human rights organisation with a specific focus on the defence and promotion of freedom of expression and freedom of information worldwide.

While praising Bermuda for tackling PATI, they highlight the biggest flaw in our draft bill immediately:

Far more serious is the provision, in  section 13, that the right of access only applies to information created after the law comes into force. That is a very serious and extensive limitation on the right of access. We note that the vast majority of other right to information laws apply to all information held, regardless of the date of creation, and that to limit the right in this way is simply not legitimate.

Other areas for improvement include:

• The absence of a framework for fees for access.
• The lack of a harm test for all exceptions.
• The failure to extend the public interest override to all exceptions.
• The lack of protection for good faith actions by civil servants pursuant to the law.

Article 19’s commentary includes several dozen recommendations to improve the bill, based on Article 19’s experience with similar laws in other jurisdictions.  More detail after the hop.

• Consideration should be given to including some of the wider benefits of the right to information in the purposes section, such as fostering participation and bolstering accountability.
• The definition of a record should cover all information, whether or not this is considered to be connected to the functions of a public authority.
• The right of access should apply to all information held by public authorities, regardless of when the information was created.
• The definition of a public authority should include the courts and all bodies which are substantially publicly funded.
• A shorter timeframe, say or 3 working days, should be set for acknowledging or transferring requests and consideration should be given to reducing the time limit for responding to requests for information.
• Inspection of records should be added to the list of possible forms of access.
• The grounds for refusing to provide access in the form sought should be narrowed down and consideration should also be given to narrowing the grounds for extending the time limit for responding to a request (for example to exclude cases where the authority cannot easily locate the information).
• A framework governing fees should be added to the primary legislation.
• Consideration should be given to extending the proactive disclosure requirements, in particular to include more financial information.
• Consideration should also be given to granting the Commissioner the specific power to extend the proactive disclosure obligations over time, as the capacity of public authorities grows, and to require them to establish a website.
• The right to information law should, to the extent of any inconsistency, override secrecy provisions in other laws, rather than it being the other way around, as is currently the case.
• All of the exceptions in the law should be subject to a harm test.
• The public interest override should apply to all exceptions.
• Consideration should be given to narrowing down the ground for refusing requests and, in particular, an objective test should be applied when considering whether a request is frivolous or vexatious.
• A rule on historical disclosure should be included in the law, which would create a strong presumption that information will be disclosed after, for example, twenty years.
• No categories of information should be excluded entirely from the ambit of the law. Instead, all information held by all public authorities should be included, and all legitimate confidentiality interests should be protected through the regime of exceptions.
• The exception in favour of Cabinet records should be narrowed, in particular by removing the wording on draft legislation from its ambit.
• The exception in favour of deliberations should be narrowed down to apply only to information the disclosure of which would undermine a legitimate interest, such as the free and frank exchange of advice.
• The exception in favour of the Governor’s responsibilities should also be narrowed down by identifying a harm sought to be avoided and protecting it, rather than ruling out whole categories of information relating to the Governor’s public functions.
• The power to refuse to confirm or deny the existence of a record should be limited to cases where this would of itself harm a legitimate interest protected by the law.
• Consideration should be given to ways to promote wider public involvement in the appointment of the Commissioner.
• Protection for good faith disclosures should be extended to cover not the Commissioner and his or her staff, but all civil servants.
• Consideration should be given to including protection for whistleblowers within the ambit of the right to information law.
• The reporting obligations under the law should be simplified and concentrated in one body, preferably the Commissioner. They should also be expanded so that the annual report to parliament provides an overall overview of implementation of the law by all public authorities.
• Consideration should be given to requiring public authorities to appoint dedicated information officers.
• Consideration should also be given to giving a central body, such as the Commissioner, the responsibility of promoting public awareness about the right to information law, including by publishing a guide on how to use it.