Openness, access to government information and Caribbean governance
First Monday

Openness, access to government information and Caribbean governance by Fay Durrant



Abstract
As governments worldwide move towards openness and transparency, the development of legislation to facilitate access to information is an essential requirement for modernization of the public sector and for effective governance.

Access to information legislation is one way to ensure integrity in public life. Over 68 countries have approved national legislation and many are actively involved in the implementation of these laws.

Globally the move to openness is supported by statements aimed at ensuring universal and equitable access to information as a basic human right. Factors influencing the approval of this legislation have included internal and external pressures from civil society, local and international press associations, and regional and international organizations.

These laws mainly have an overall objective of mitigating corruption and provide the general public with the ability to request documents and other materials held by all government agencies and other agencies receiving public funds. The exemptions identified under the laws are usually based on ensuring national security.

In the English–speaking Caribbean, Antigua and Barbuda, Belize, Jamaica, and Trinidad and Tobago have passed access legislation and several countries including the British Virgin Islands, Cayman Islands, and Guyana are discussing their own draft legislation.

This paper assesses the main elements and current status of the legislation from global surveys including that done by Banisar in 2004, and will examine in detail the progress in implementing the access legislation in the Caribbean. The research will examine the context of access legislation, complementary legislation, information infrastructure, administrative procedures, and the impact of new technologies on access to information services.

Contents

Introduction
The Caribbean Single Market and Economy (CSME)
Access to information — Freedom of information
Governance and the individual’s right to know
Influencing factors
Going beyond information access
Libraries — Current and possible roles
The Caribbean experience
Implications for openness and governance
Conclusions and recommendations

 


 

Introduction

Openness and transparency can be seen as elements of good governance. In the vision of public sector modernization for Jamaica, the Cabinet Office defines governance as “the exercise of power in the economic, political and administrative management of the country’s resources.” In the document Government at your service, which outlines the strategy, openness is identified as the first element of good governance, and is described as comprising “processes and information which allow the public to see how institutions work and function to ensure that information is accessible, appropriately packaged, and widely disseminated to the public.” [1]

While access legislation stems from principles of good governance, there are challenges associated with the implementation of this legislation, and in moving to full national implementation.

Over the past two decades there has been a growing global trend towards enacting access to information legislation. This trend has coincided with governmental efforts to achieve modernization and move towards openness, transparency, and accountability as well as encourage the participation of citizens in decision–making.

Janet Mather (1997) identified three dimensions of transparency and highlighted the need for practical measures to provide access to information; clarity on how and why decisions were made; and, empowerment of individuals to contribute to decision–making.

This paper will assess the main elements and current status of the access legislation, and look more closely at the experience in implementing access legislation in the English–speaking Caribbean countries and the current and potential contribution to Caribbean governance.

According to David Banisar’s (2004) global survey of access legislation, there were then 57 governments which had passed access or freedom legislation. Roger Vleugels’ (2006) overview of access legislation indicated that there are 11 more countries which have passed legislation, making a total of 68.

The laws all provide for a general right by citizens, residents and sometimes even non–residents to demand information on the activities of governments as reflected in official records. Conditions for withholding critical information, appeals processes and procedures for oversight are included in most national legislation.

In almost every country in Europe legislation has been approved enabling citizens to access governmental records, with Sweden being the earliest in 1766. Elsewhere Colombia was an early implementer with legislation passed in 1888. The current trend seems to have been led by the United States with the passage of the Freedom of Information Act in 1967. This landmark legislation enshrined in law the public’s right of access to federal government records, and may have encouraged other countries — including Australia, Canada and New Zealand — to develop their own laws (see Table 1).

 

Table 1: Access legislation by region.
Source: Vleugels (2006).
RegionNumber
Africa3
Asia and the Middle East12
Americas (including the Caribbean)14
Europe37
Oceania2
Total68

 

In the English–speaking Caribbean there have also been developments encouraging the introduction of access legislation. Of the countries making up the Caribbean Single Market and Economy (CSME), Belize was the first with legislation passed in 1994, followed by Trinidad and Tobago in 1999, Jamaica in 2002 and most recently Antigua and Barbuda in 2004. Guyana, the British Virgin Islands and the Cayman Islands have draft legislation tabled in 2005, which are under discussion.

 

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The Caribbean Single Market and Economy (CSME)

The aim of the Caribbean Single Market and Economy (CSME) is to create a single economic space where people, goods, services and capital move freely. This is expected to take effect in 2008 with the participation of the 14 member states of the Caribbean community. The agreement for the first stage of the CSME, the Single Market was signed in January 2006 and preparation for the final stages of the CSME is now ongoing. The implementation of the CSME will require the harmonization and coordination of social, economic and trade policies, including the Draft Provisions for the Protection of Caribbean [CARICOM] Human Rights. Implicit in these provisions is the expectation that those countries which do not yet have national access legislation will be encouraged to develop their own laws compatible with regional provisions.

 

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Access to information — Freedom of information

The legislation under discussion uses the terminology “access to information” or “freedom of information” without any apparent distinction between the two. “The right to know” is also used more casually to describe the same laws. In Jamaica the initial discussion and consultation used “freedom of information” in the title, but as the consultations developed, “access to information” was considered to more closely reflect the process of information access which the legislation facilitates. There are a number of similar terms used for the same legislation but for this paper the term “access legislation” will be used for all legislation under discussion.

 

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Governance and the individual’s right to know

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. [2]

This article from the Universal Declaration of Human Rights has been much quoted by human rights groups. On closer inspection the emphasis is on the right to “seek, receive and impart”, and places the onus on the user, without making into reference to the importance of the environment needed to ensure that the process of access to information contributes to good governance.

Governance comprises the traditions, institutions and processes that determine how power is shared, exercised, how decisions are made, and how authority responds on issues of public concern. The objectives of governance would therefore be supported by access legislation which facilitates “a closer relationship between government and civil society and the sharing of tasks and responsibilities for problem solving.” [3]

 

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Influencing factors

The influences for implementing programmes of good governance and access legislation include statements supporting the introduction of access to information or freedom of information legislation. As far back as 1946 the United Nations General Assembly stated that “Freedom of Information is a fundamental human right and is the touchstone for all freedoms to which the United Nations is consecrated.”

Citizen action groups, and human rights organizations strongly support the principle of “maximum disclosure” which “establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances ... .” [4] The need for exemptions is recognized “unless there is an overriding public interest reason for denying public access.”

In addition to human rights aspects, an individual’s “right to know” is influenced by other environmental factors. Blais (1995) identifies the following influencing factors:

  • technological advances that have broken down communication barriers;
  • redefined principles of governance; and,
  • increased accountability required from governments;
    • the need to demonstrate (by recourse to accurate records) that they have fulfilled their legislated and legal obligations;
    • the need for decision–making to be marked by a clear trail of evidence; and,
    • government actions have to be executed in an unbiased, efficient manner.

The systems and programmes for information and records management show some evidence of advancing to respond to this new environment. The recognition of the importance of corporate memory has supported the development of information systems so that evidence can be easily accessible.

 

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Going beyond information access

While most access laws follow the same general principles, there is still the question of the degree to which the laws have been implemented and the degree to which information is being accessed. Unless the implementation of the laws achieve a match between the needs of ordinary citizens with the availability of relevant information, access legislation is unlikely to impact positively on governance.

In the context of governance citizens need to be able to obtain information on governmental activities particularly those activities which impact their daily lives.

Going beyond the information on how to access services, citizens also need to be able to examine evidence of how decisions are made. In Jamaica the NGO Jamaicans for Justice has monitored requests during the first six months of the implementation of the Jamaican act in 2004. Their report shows that as of 21 July 2004 (a little over six months after the beginning of the phased implementation of the Act) Jamaicans For Justice was monitoring 98 requests for information.

The range of information requested and obtained is instructive and illustrative of the possibilities open to citizens to be informed about and influence government policy. Some of the successful requests under the Jamaican Access to Information Act covered details of contracts and expenditure relating to infrastructure, staffing levels of a public hospital, and test papers of the Grade Six Achievement Test (GSAT) by students from one primary school in 2000.

These requests provide evidence that the information needs of citizens can be extensive in scope. The process of delivering the right information and contributing to governance requires the application of the law to all public agencies and the development and implementation of adequate information systems and infrastructure.

In practice queries need to be carefully refined and analyzed in order to avoid information overload. Information may be engulfed in excessive “noise” unless there are efforts on the part of information managers to clarify in consultation with the requestor, what specific information is needed. There is of course some tension between the practice of reference librarians and the provision stated or inherent in the acts. Section 6 (3) of the Jamaica Access to Information Act declares that “an applicant for access to an official document shall not be required to give any reason for requesting access to that document.” This statement, as well–intentioned as it is, prevents the kind of interaction normally carried out by librarians to assistant individuals in reference work.

 

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Libraries — Current and possible roles

There is a gap between the objectives of governance and the ability to deliver relevant information services. In general, librarians and records managers of the public authorities have responded efficiently to requests.

We find that there are a number of areas in which libraries, records centres and archives have roles to play in increasing the accessibility and usability of information from government records. Reviews of experiences in implementing access legislation in Jamaica and Belize have indicated that the public needs to be more aware of the scope and benefits of the legislation. In the Jamaican review of 2006 public libraries in collaboration with the Library and Information Association of Jamaica (LIAJA) submitted a statement to the Joint Select Committee of Parliament for Review of the Access to Information Act. In recognition of the gap between the providers and users, this statement proposed that the public libraries in Jamaica be incorporated into the framework for the dissemination of information:

These include:

  • sensitizing the public and creating an awareness of the existence of the act;
  • providing locations were the public can learn what the act offers; and,
  • providing access points for receiving requests and for delivering documents.

 

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The Caribbean experience

 

Table 2: Caribbean access legislation.
CountriesTitle of legislationEffective date
Antigua and BarbudaFreedom of Information Act 20042005
BelizeFreedom of Information Act1994
JamaicaAccess to Information Act 20022004
 
Draft legislation  
GuyanaFreedom of Information2005
British Virgin IslandsFreedom of Information2005
Cayman IslandsBill for a Law to give the Public
a General Right to Access to Official Documents
2005
 
Regional  
CARICOMCaribbean Human Rights Treaty2005

 

How has the Caribbean access legislation contributed to good governance? Although there has been discussion in the ambit of the Commonwealth Parliamentary Association and other international groupings, only a minority of countries in the English–speaking Caribbean have passed such legislation. The four countries which have done so — Belize, Trinidad and Tobago, Jamaica and Antigua and Barbuda — have made some progress, and that experience will be relevant to the development of access legislation in those countries where bills are under discussion. Three other countries — Guyana, British Virgin Islands and the Cayman Islands — have bills under discussion in Parliament as well as in the media. The other countries of the Caribbean Single Market have not taken any steps towards putting such legislation in place. It is possible that the discussion of the Caribbean Human Rights Treaty will stimulate further progress towards drafting and passage of national access legislation.

An assessment of existing legislation shows that the objectives as stated in the laws range from efforts to achieve government accountability and transparency to more specific issues of enabling citizens to access government information. The laws recognize that the public has the right to access information held by public authorities. The legislation of Jamaica includes broader objectives of achieving government accountability, transparency and public participation, while those of Antigua and Barbuda and Trinidad and Tobago are more specific and cover the right to access information in the possession of public authorities. The Freedom of Information Act of Belize, on the other hand, does not state its objectives.

An important determinant of the possible contribution of access legislation to transparent governance is the scope of the application. Iyer (2006) and Mendel (2005) suggest that the scope of coverage refers to the subjects covered by the act as well as the coverage of “public authorities” which are expected to provide access to their records. Neilsen (2006) and Roberts (2002) both comment on the fact that as governments continue to expand their privatization programmes, and divest agencies and enterprises to private holdings, access legislation will lose its comprehensive effect unless there is expansion of its scope to include the private sector.

Although there is the expectation that the legislation applies to all public authorities there is no mention of the scope of each act or which institutions are covered. The stated exemptions imply that all others are expected to provide access to their records. The intent has been to incorporate all “public authorities.” Reports of the implementation of the acts of Jamaica and Trinidad and Tobago show gradual incorporation of government and quasi–government agencies. In Jamaica the preparation for the implementation of the act from 2001–2003 initially involved six ministries, and subsequently all “public authorities” now fall under the purview of the Access to Information Act. The 2004 report on freedom of information for Trinidad and Tobago shows over 40 government agencies participating in its implementation, but there is no statement of the scope of the application.

Facilitating access is necessary if users are to make optimum use of available resources. In Jamaica and Trinidad and Tobago the designated access officers of each public authority are the first points of contact for making requests. These people are mainly librarians or records managers, and their names and other contact details of the authority are published on the ATI/FOIA Web sites, on the sites of the public authorities and from time to time in the press.

What does this signify in terms of openness? These measures show some contribution to openness and are a good beginning for enabling the public to make initial requests for information. The Web sites are the main reference points, and in several instances the average citizen can use the site of the public authority as a starting point for making a request. This assumes that the majority of citizens in each country have regular access to the Internet and therefore to these sites. In fact, 1,067,000 (or 39.6 percent) of Jamaicans and 160,000 (or 12.1 percent) of Trinidadians have access to the Internet and can therefore be expected to benefit from the availability of information on access legislation.

In addition to being aware of access points, training and sensitization is essential for the development of informed access officers and citizens. This has been organized in Trinidad and Tobago and in Jamaica by ATI/FOIA units to ensure that public officers are aware of the requirements of the act and that the access officers are able to function in the new open environment. In addition to governmental efforts through their ATI/FOIA units there have also been projects executed by civil society to extend awareness. The Carter Center has been working in Jamaica since 1999 on a Transparency Project which has included activities to support the passage, implementation and enforcement of the Jamaican Access to Information Act. It has held seminars and has issued at least one publication, edited by Laura Newman (2002), which assesses the Jamaican act and brings out best practices from earlier implementations of access legislation in other countries including Canada and South Africa.

Caribbean legislation is relatively recent. The Belize Freedom of Information Act came into force in 1994 and the others under study from Trinidad and Tobago in 2001 to Antigua and Barbuda in 2004. The laws of Belize and Jamaica have been reviewed with a view to determining achievement of their objectives.

The Belize Political Reform Commission on Belize Freedom of Information commented in 2000 that the definition of exempt documents is too broad and recommended that the “Government review and amend the Freedom of Information Act with the objective of narrowing the scope of the Act’s definition of documents exempted from public access.” The Commission further recommended that “the Act be amended to provide for the automatic release of all government documents after fifteen years have passed.” These recommendations are not however reflected in a revised act.

The Jamaican act was reviewed in early 2006 by a bi–partisan Joint Select Committee of Parliament chaired by the Minister of Information. Groups — including representatives of public officials, access officers, public librarians, and citizens action groups — made submissions. The Committee expressed concerns over the low number of requests, the need to make the public more aware of the existence of the act and the accountability of public officers or advisers for decisions. The Committee has not yet issued a report so it is difficult to assess the impact of its review.

The scope of exemptions is another aspect of access legislation of great concern to citizens. As in the case of the Belize review, Iyer (2006) and Mendel (2005) noted that exemptions within access legislation should be very carefully defined “to protect certain overriding public and private interests.” Exemptions identified under Caribbean laws are usually based on defence, security, law enforcement and international relations, personal privacy and decisions of the Cabinet. The use of conclusive certificates is provided for in all Caribbean legislation therefore reducing the possibility of citizens understanding the decision–making process.

 

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Implications for openness and governance

An examination of access legislation and of local environmental conditions revealed that the access legislation in force in four countries in the Caribbean have followed somewhat different paths to full implementation. Trinidad and Tobago and Jamaica have made significant progress in setting up administrative units, providing training and sensitization programmes establishing “Access to Information” Web sites, and designating access officers.

On the other hand, Belize and Antigua and Barbuda show no evidence of having gone beyond the passage of the legislation and the establishment of the legal framework for the acts. The implementation of the acts of Jamaica and Belize has been reviewed and there are regular reports of requests, from ATI/FOIA units in Jamaica and Trinidad and Tobago.

The passage of the legislation can be considered the first step in achieving openness and reducing the gap between government and civil society. The related question is how far reaching is this legislation? Public awareness and education campaigns have been implemented, but still need to be more extensive throughout each country, and to be provided additionally through public library systems and community centres.

Do the dissemination programmes match the capabilities of all levels of citizens? The general presumption is that citizens can utilize material published in the media and on the Internet. There is again the need to examine more carefully the requirements of citizens who may be illiterate or whose first language may be other than the official language.

The practical measures to provide access to information still need to be more integrated into national information systems and to be tailored to match the information–seeking characteristics of the citizenry.

How are exempt categories defined? Policies are needed to make these exempt categories clear.

The awareness by citizens of the processes of decision–making is the second dimension of transparency (as identified by Mather). The acts — as they exist — do not overtly contribute to citizens’ understanding of the decision–making process. The media, individuals or citizen action groups have to be pro–active in seeking information on the decision–making process which they require.

Participation in decision–making is a further dimension of good governance which still needs to be incorporated into the process of implementation of access legislation in the Caribbean.

Governments and human rights groups have made a good start, towards good governance, however, there are still steps for full implementation in the context of good governance.

 

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Conclusions and recommendations

There is need for further research on the best means of raising awareness and developing public participation in accessing and using government information. The infrastructure as exists in pubic libraries can best be utilized to provide the points for education and training of the public and their rights to access information from government records.

Matching the channels and formats for dissemination with the public requirements is another area where further research is needed. Determining and testing formats and channels which facilitate access to information can also be expected to aid the linkage between access legislation and good governance. End of article

 

About the author

Fay Durrant is Professor of Library and Information Studies at the University of the West Indies, Mona, Jamaica. She was recently elected a Vice President of the Inter–governmental Council for Unesco’s Information for All Programme. During the current year she is on Mona Fellowship Leave and is engaged in analyzing the factors which impact on access to information in the Caribbean — content, format, connectivity, accessibility, usability, affordability, and information policies.
E–mail: fay [dot] durrant [at] uwimona [dot] edu [dot] jm

 

Notes

1. Jamaica. Cabinet Office, 2002. Government at your service: Public sector modernization, vision and strategy 2002–2012. Ministry Paper number 56 (September), p. 19.

2. Article 19, Universal Declaration of Human Rights.

3. Jones, 1997, p. 2.

4. Article 19, p. 4.

 

References

Article 19, 1999. “The Public’s Right to Know: Principles on Freedom of Information,” at http://www.article19.org/pdfs/standards/righttoknow.pdf, accessed 24 April 2006.

David Banisar, 2004. “The Freedominfo.org Global Survey: Freedom of Information and Access to Government Record Laws Around The World,” http://www.freedominfo.org/documents/global_survey2004.pdf, accessed 24 April 2006.

Belize, 2000. Freedom of Information Act. Revised edition, accessed 24 April 2006.

Gabrielle Blais, 1995. Access to Archival Records: A Review of Current Issues. Paris: UNESCO; and at http://www.unesco.org/webworld/ramp/rtf/books/r9505e.rtf, accessed 24 April 2006.

Cayman Islands, 2005. Freedom of Information Law for the Cayman Islands, at http://www.caribbeannetnews.com/2005/10/12/freedom.shtml, accessed 24 April 2006.

Venkat Iyer, 2006. “Freedom of information: Principles for legislation,” at http://www.bytesforall.org/Egovernance/html/freedom_info.htm, accessed 24 April 2006.

Jamaica, 2002. Access to Information Act 2002, at http://www.jard.gov.jm/ati/index.php, accessed 24 April 2006.

Jamaica. Access to Information Unit, 2005. “Director’s First Quarter Report 2005,” http://www.jard.gov.jm/ati/index.php, accessed 24 April 2006.

Jamaica. Cabinet Office, 2002. Government at your service: Public sector modernization, vision and strategy 2002–2012. Ministry Paper number 56 (September).

Jamaica Library Service, National Library of Jamaica, Library and Information Association of Jamaica, 2006. Libraries and the Access to Information Act: Statement to the Joint Select Committee of Parliament for Review of the Access to Information Act.

Jamaicans for Justice, 2006a. “Access to Information success stories,” at http://www.jamaicansforjustice.org/archives/2004.07.26%20Access%20to%20Information%20Success%20Stories.doc, accessed 24 April 2006.

Jamaicans for Justice, 2006b. “Access to Information Act,” at http://www.jamaicansforjustice.org/ATI/about.htm, accessed 24 April 2006.

Edwin Jones, 1997. Governance, Ethics and Transparency in the Caribbean. 32 pp.

Janet Mather, 1997. “Transparency in the European Union,” In: Openness and Transparency: Meaningful or Meaningless? Access to information on the European Union. Manchester: European Information Association 1997.

Toby Mendel, 2005. Parliament and Access to Information: Working for Transparent Governance: Conclusions of a Commonwealth Parliamentary Association — World Bank Institute Study Group on Access to Information, held in partnership with the Parliament of Ghana, 5–9 July 2004. Washington, D.C.: World Bank Institute, at http://siteresources.worldbank.org/WBI/Resources/Parliament_and_Access_to_Information_with_cover.pdf, accessed 24 April 2006.

Laura Neuman (editor), 2002. Fostering Transparency and Preventing Corruption in Jamaica. Atlanta: Carter Center, at http://www.cartercenter.org/, accessed 24 April 2006.

Alasdair Roberts, 2002. “The Right to Information and Jamaica’s Access to Information Act,” In: Laura Neuman (editor). Fostering Transparency and Preventing Corruption in Jamaica, at http://www.cartercenter.org/documents/1038.pdf, accessed 24 April 2006.

Trinidad and Tobago. Ministry of Public Administration and Information, 2004. The Freedom of Information Act 1999: Annual Report to Parliament 2004, http://www.foia.gov.tt/files/cms/FOIA%20Annual%20Report%202004.pdf, accessed 24 April 2006.

Roger Vleugels, 2006. “Overview of FOIA Countries Worldwide — February 1 2006,” at http://ifitransparency.org/uploads/7f12423bd48c10f788a1abf37ccfae2b/Overview_68_FOIA_Countries___feb_2006_2.rtf, accessed 24 April 2006.


Editorial history

Paper received 15 May 2006; accepted 19 May 2006.


Contents Index

Copyright ©2006, First Monday.

Copyright ©2006, Fay Durrant.

Openness, access to government information and Caribbean governance by Fay Durrant
First Monday, volume 11, number 6 (June 2006),
URL: http://firstmonday.org/issues/issue11_6/durrant/index.html





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