The NYT has an interesting article on India’s popular freedom of information access law pointing out that it may not have made a big dent in corruption, but it has given a powerful tool to citizens to resolve their complaints.

There is, however, a little warning from one of the law’s great supporters:

“But our accountability mechanisms are weak, and transparency has no purpose without accountability.”

I’d like to point out that PATI itself is not the end game;  it is just one step towards increasing the accountability of the budget-busting Bermuda Government.

Times change, and the PAC has unanimously voted to open its meetings to the public.  This is a very positive move.

The PAC is currently chaired by the UBP’s Bob Richards.  Other members include Patricia Gordon-Pamplin (UBP), Lovitta Foggo, Walter Lister, and Patrice Minors (PLP).

Thursday’s meeting is at 2.30 p.m. in the Senate chamber.

The PAC is tasked with reviewing the Government accounts and how they tie into expenditures approved by Parliament.  In general, government PACs are intended to focus on the adequacy of the accounts and on “value for money” rather than to comment on the merits of any particular policy.

In order to reinforce the transparency of this important step forward, the PAC should rapidly establish a website with a description of its duties, the schedule of its meetings as well as minutes, attendance records, and other documents related to its work.

UBP MP John Barritt then posed a question about several outstanding Parliamentary Questions that Government has so far chosen to ignore, relating to the controversial expansion of the Stonington/Coco Reef lease as well as the equally controversial Corporations takeover review.

The PLP frontbench quickly objected that the questions were out of order and the Speaker upheld the objection.

The message seems to be that we may have public access to information when the PLP Government feels like granting it.

The sooner the better.

For those interested, here are two successful examples of searchable parliamentary sites from the open source software world.  They do much to provide insight for voters into the workings of government, and to increase the transparency and accountability of the legislature.

• Canada – http://openparliament.ca/
• UK – http://www.theyworkforyou.com/

More transparency in the House dealings should improve the quality of debate, reduce the hotheaded bullsheet, and perhaps even raise attendance.

I still believe that meetings of the House and Senate should be video broadcast on Government’s costly CITV channel.

Let’s hope it incorporates the substantial feedback that was provided by both Bermudians and international experts in public access laws.

Meanwhile, the Cayman Islands Information Commissioner has launched a new website on their PATI law at http://www.infocomm.ky/

Take a look at it as a good example that small island country can introduce and operate a vigorous transparency regime without humming and hawing about it for years.

The MPs have had the draft since the House broke for summer recess last year, and one hopes the House will consider the changes as soon as possible.

The changes supported by both Barritt and Smith include:

• Provision for the election of Speaker by a secret ballot should there be more than one candidate
• An express requirement to attend meetings of the House unless excused by the Speaker
• A set Question Period of up to 60 minutes in length, after the period set aside for congratulatory and obituary remarks, in which questions may be asked of Ministers on issues of the day and without prior notice
• A time limit of up to 30 minutes per member after the lead member for Government and the Opposition have spoken on a bill – with provision to transfer time from one speaker to another if members wish
• The annual Budget debate to be extended by two further days
• The introduction of an electronic Hansard and other additional provisions for e-communication in the House
  

I support all of these amendments.  Given the importance of this years budget it is a pity that the House has evaded their adoption until, presumably, after the February 19 budget announcement.  And if you can’t get the full Hansard going, at least start posting the schedule, minutes, and draft legislation online.

It is also a dire shame that these proposals do not include opening up meetings of committees of the House – such as the Private Bills and the Public Accounts committees – to the public.  As the public legislature, all deliberations should be public!  This is not controversial:  open meetings are a staple of democracies around the world.  (Update:  I understand that the UBP strongly supports opening the committees but the PLP has resisted taking that step.  Why?)

It is ironic that Government wishes to “reform” the Corporations of Hamilton and St George in a great rush, but drags its feet on reform of its own House.  The Throne Speech talked about a project to tackle this in future with the aid of the Commonwealth Parliamentary Association.  Where’s that stand?  Or do we need another $800,000 American lobbyist to help us figure that out by July?

The PLP leadership refuses to allow the Public Accounts Committtee (PAC) of the House of Assembly to meet in public – an abberation among modern democracies.

And, it appears that the PLP members of the PAC are stifling its work by not appearing at its meetings, with a senior PLP member deriding it as simply “a talk shop.”

The PAC is the cross-party parliamentary committee tasked with scrutinising the spending of public money.  Its work is vital … particularly given the Bermuda Government’s spiralling budgets, skyrocketing national debt, and two years of audit Qualified Opinions.

I call on the Bermuda Government to open meetings of the Public Accounts Committee, and for all its members to actively participate.  It is irresponsible – and arguably unconstitutional – for the House of Assembly to neglect its duty to protect the public purse.  And the secrecy of the PAC’s workings allows the neglect and political games to continue.

“I wish to advise this honourable House that when I invite Cabinet’s further consideration of the bill it will contain a recommendation that it consider the issue of retroactivity.  Personally, I wish it to be clearly understood that I am in favour of retroactivity right back to the Sea Venture.”

If he supports retroactivity, then why did he – as the Minister responsible – propose a draft law that did not include it?

It’s positive that the PLP seems willing to correct this major shortcoming in the draft law.  Let’s hope that they also deal with the law’s loose handling of exemptions, it’s lack of whistleblower protection, and the negative resolution approach to removing public authorities from transparency under the law.

If the PLP is sincere in their Throne Speech commitment to “modernise the Legislature”, then the updating of the draft PATI law should be undertaken by a bipartisan committee of the House, rather than be decided solely within the confines of Cabinet.

Dr. Brown also announced that Government will kick off an internal review of Government’s record keeping practices – with a report due in mid-2010 – to help lay ground work for an eventual PATI implementation.

He went on to describe how the section to allow the Minister to amend the PATI law by regulation was only intended to simplify updates to the law going forward.  He went on to give examples about hiring staff and setting fees.

But he neglected to mention the main bone of contention, found in section 58(1)(d), which gives the Minister the power to remove public authorities from the law’s coverage by negative resolution.

In my opinion, that’s the deliberate distortion.

The negative resolution process may be applicable to commercial laws that require frequent updates that are rarely controversial.

But the PATI public access to information law is different.  It is a human rights law.  It will be controversial at times, and subject to the tremendous political impulse to tamper.  The PATI law is intended to apply to all public authorities, and all entities that receive significant public funding.  Full stop.   Any changes to the law must go through a vigorous Parliamentary process.

So what if Parliament must vote on amendments!  That’s their job.  If the system is inefficient, then reform it to work better.  Pass proposed legislation through committees so that, when it comes to the floor, the controversial areas have already been worked out!

Here are a few PATI submissions from ‘roun de web:

• Politics
• Catch a Starling
• That Bye in St Dawids
• Stuart Hayward (in the Bermuda Sun)
• Article 19 (international PATI specialist)
• Bermuda Democratic Alliance (on Facebook)
• United Bermuda Party (very thorough)

• Bermuda PATI Draft law [pdf]
• Bermuda PATI Consultation Handbook [pdf]

Submissions should be directed to The Cabinet Secretary at pati@gov.bm.

The issue of retroactivity is a big deal.  PATI should apply to public information, not just future information.

The media has picked up on something.  There is a trend in recent years in new laws allowing the Minister to amend the law by regulation – without having to go back to Parliament.  This may make sense in some cases, such as the Companies Act, which deal with transactional matters.  The ability to quickly enact minor changes to the law helps Bermuda’s competitiveness.

In my opinion, however, this “workaround” is being used too frequently.  It is definitely not a good idea for the public access to information law.  It has taken years for Government to propose PATI – with much study and two successive rounds of public consultation.  Ministers should not then be allowed to single-handedly exclude any public authority from the PATI by simple regulation … as is proposed in section 58(1)(d) waaay at the back of the proposed law.

PATI should apply to all public authorities, as well as any entity that receives significant funding from the Government.  If a blanket exclusion is desired for a public authority, then it should be justified before Parliament.

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.

• For example, the law proposes a lengthy (2-3 year)  implementation period and will only apply to information collected after its effective date.
• There is a long list of specific exemptions, as well as vague wording that allows authorities to claw a wide variety of information into the exemptions.
• There is a 30 year exemption for records associated with Cabinet.
• It leaves the subject of fees open (fees should cover only the cost of duplication as opposed to research).

On the whole, it is a rather opaque transparency law.

It also misses a singular opportunity to protect whistleblowers (where an insider reveals information of wrongdoing, even if they break rules or other obligations in doing so).  The Cayman FOIA law, enacted last year after a one-year implementation period, does deal with this:

50. (1) No person may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment-related obligation, for releasing information on wrong-doing, or that which would disclose a serious threat to health, safety or the environment, as long as he acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrong-doing or a serious threat to health, safety or the environment.
(2) For the purposes of subsection (1), “wrongdoing” includes but is not limited to-
(a) the commission of a criminal offence;
(b) failure to comply with a legal obligation;
(c) miscarriage of justice; or
(d) corruption, dishonesty, or serious maladministration.

This is very relevant to Bermuda.  Why is it not covered in the proposed Bermuda law?

See more here.