e. bryan - the proposed jamaican acces to information act (part1) [acarm newsletter]

8/9/2019 E. Bryan - The Proposed Jamaican Acces to Information Act (Part1) [ACARM Newsletter]

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ACARM Newsletter

Issue 31

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The Proposed Jamaican Access to Information

Legislation

This article

comprises extracts from an extensive paper

by Emerson O. S G Bryan (Records and

Information Manager, Ministry of Land and

Environment, Office of the Prime Minister,Jamaica). It has been split into two parts.

This first part looks at the background to the

proposed legislation, exemptions from the

right of access, and the vital role of records

management.

Part two (to be published in the next

Newsletter) will examine human recourses,

procedures for meeting access to

information requests, and the role of the

Jamaican National Archives.

OVERVIEW AND ANALYSIS

The then Government of Jamaica, through

the former Ministry of Information and

Culture on the 15th

of April 1991, pursuant

to a Cabinet directive, begun the process

towards Access to Information legislation

for Jamaica, under the leadership of the then

Contractor-General, Mr. Gordon Wells, aschairman of (as it was then called) the

Freedom of Information Committee. The

main tasks that the Freedom of Information

Committee undertook were:

Gathering information, material and existinglegislation on the subject from other

jurisdictions, especially Commonwealthcountries;

Identifying information of local originrelevant to the subject;

Identifying key issues and their treatment byvarious jurisdictions;

Analyzing those findings with a view todetermining areas appropriate to Jamaica;

Inviting public comment and suggestions; and Formulating recommendations on each issue.

The Government of Jamaica, in response to

a mandate issued by the Organization of

American States (OAS), Inter-American

Judicial Committee, at its 55th

Regular

Period of Sessions, held during August 2nd

-

27th 1999, in Rio de Janeiro, Brazil, had alsorecently begun investigating matters

concerning access to information and the

protection of personal data entered in mail

and computerized electronic transmission

systems. The report presented by rapporteur,

Dr. Jonathan T. Fried at this session entitled:

Right to Information: Access to and

Protection of Information and PersonalData, made reference to the 1981

Strasbourg Convention for the Protection of

individuals with regard to automatic

processing of personal data. This

convention was compared with a

preliminary draft of the Inter-American

Convention prepared by the OAS

Secretariat for Legal Affairs on existing

domestic legislation, regulations, and

policies governing:


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[a] freedom of, or a persons right to

access, information in the possession

or control of government;

[b] the protection of personal data

against unauthorized use in the

possession or control of

governments;

[c] freedom of, or a persons right to

access, information in the possession

or control of private entities (for

example, utilities, bank or credit

agencies);

[d] the protection of personal data

against unauthorized use in the

possession or control of private

entities;

[e] trans-border or international

dimensions of the foregoing; and

[f] any other domestic legislation,

regulations or policies addressing

personal data or information inelectronic or machine readable form

not otherwise included in [a] through

[e] above.

To date, however, Access to Information

legislation proposals in Jamaica have been

focused mainly on accessing documents

with very little emphasis on privacy impact

assessments (PIAs).

The Issue of Access to Information as a

Right

The Honourable Minister of Information

was quoted recently in the Star Editorial

dated the 30th

of January 2001, as saying:

It is the right of every citizen to

have information, we (government)

are not doing him or her (i.e., the

public) a favour.....Rather than

them (i.e., the public) using

devious means to get it.....Let usgive them the information.

This might roughly be interpreted as

implying that it was the right of every

citizen to have information. This is (at least

to the best of my knowledge) not entirely

accurate. There is no instrument of

authority which affords every citizen of

Jamaica the right of access to governmental

/ official records or information. However,

it has been the practice by the governmentto grantsuch rights at their discretion, based

on the merit of the query.

Should the Access to Information

Legislation be Retrospective?

It was initially argued that the applications

of this Act should only be applied to

information / documents produced seven (7)


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years prior to the effective date of the

proposed Act. The Joint Select Committee

on Access to Information has subsequently

agreed to a request by the opposition,Jamaica Labour Party (JLP), that this be

increased in scope to thirty (30) years

instead. Nevertheless all documents

produced before this time would therefore

still be protected under the Jamaican

Official Secrets Acts (1911) and (1920)

(unless it is repealed) and the Archives Act

(1982), section 10-(1-5). The Jamaican

government would be regarded as breaching

trust and confidentiality if it were to reveal

certain information under the exemptedcategories section. Historical records,

which are kept by the Jamaica Archives and

Records Department in the National

Archives in Spanish Town, and to lesser

degrees: the Government Records Center

and the Institute of Jamaicas National

Library and Museum, have various

categories of old official records, such as

old military, administrative and parochial

records (some even dating back to the

Colonial era), which are still consideredsensitive or secret and remain largely

inaccessible to the public, and in some

extreme cases, the permission of the

relevant authorities under the Archives Act

(1982) or the government national archivist

must be given.

It must also be recognized that even if some

of these old government records were to be

weeded out to extract any sensitive

material before its release, the diversion oftime and resources would be too taxing on

the already limited government resources,

therefore unless they (i.e, the old documents)

do not qualify for exemption as outlined in

the Access to Information legislation, these

records, I believe should be

protected/released at the discretion of the

relevant authority as under the Official

Secrets Act (1911) and (1920) and the

Archives Act (1982).

The Situation with Respect to Official

Records

The Ministry Paper dated 23rd

of November

1998 by the Prime Minister, entitled:

Proposals for a Freedom of InformationAct, section 36, pg. 17, at the caption on the

Coming into force of the Proposed Act and

documents covered, it states that:-

.....with a view to making disclosure(of records) under the proposed

legislation, a manageable exercise, it

seems prudent to restrict the scope of

that legislation initially to documents

which were created by the

Government or which came into the

Governments possession no earlier

than seven years before the coming

into force of the Act.

The Ministry Paper also intimated that everypublic body must provide facilities both at

the local and international level, and at any

Offices which its head may consider

reasonable, for the public to inspect manuals,

handbooks or other documents used in

decision-making that affects the public.

This process of implementation would be

best pursued independently by each

government ministry/ department / agency,

as each would be affected differently. Each

government entity would educate the publicon its information assets and the various

functions and services for which it is

responsible. The auditing (inventorying) of

the organizations records would be a

prelude to the implementation of a Public

Register, which would essentially outline all

the records / files / documents / manuscripts

etc. contained in the public domain and

serve as a platform in the successful

delivery of the service of providing


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information because the applicant would

also be able to better identify and request

the specific record(s) that they want from

the this register / index. This will alsoreduce loss of productivity time as

information service providers / records

officers would be better able to locate and

provide access to these records because the

applicant would have made an informed

request.

Exemptions from the Right of Access

This bold initiative by the currentadministration to introduce an Access to

Information / Freedom of Information

legislation will ultimately mean either a

review or a repeal of the Jamaican Official

Secrets Acts of 1911 and 1920. The

government still intends to keep certain

categories of records outside the scope of

the proposed Act, and the areas which

qualify for exemptions protecting justifiably

confidential material are:-

defence and national security; international relations; law enforcement and legal proceedings; management of the national economy; information given in confidence to the

government;

trade relations and trade secrets; personal privacy; cabinet deliberations of a sensitive nature; internal working documents; matters pertaining to criminal or court

proceedings

.

While there is an acknowledgment that this

proposed legislation is seeking to promote

transparency and remove the traditional

banner of secrecy, we must recognize thatan access to information legislation will also

bring up the question of privacy. Access to

Information legislation is usually

complemented by Privacy legislation. I do

not believe that the official Secrets Act

(1911) and (1920) should be repealed, I

believe however, that it must be amended to

reflect the move by the government towards

transparency. The Official Secrets Acts

must be allowed to continue inter-alia to

give special protection to vital informationrelating to our international relations, trade,

national security, defence, economic

policies etc., but the government should

justify the need for secrecy in the interest of

the state.

Infrastructure and Resources

The Jamaica Association of Records

Managers and Administrators (JARMA -The Jamaican Chapter of ARMA

International) and the Library and

Information Association of Jamaica (LIAJA

- formerly the Jamaica Library Association

(JLA)) both agreed in their respective

submissions to the National Committee on

Freedom of Information, that for all the

components of such a legislation to work

there must be a well managed records

management system in place. Some

approved records and informationmanagement programmes and practices

which would encourage the better success of

an access to information legislation from the

organizations level indicated by both

bodies were:-

i) recognition that the institutions records and

information are valuable corporate resources

which must be managed throughout the

records and information life cycle, i.e., from


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creation to final disposition;

ii) a unified policy (i.e., public-service-wide) and

procedural framework laying-out how the

institutions records and information will bemanaged throughout their life cycle;

iii) an established standardized system for

organizing and describing the institutionsrecords and information as an aid to retrieval;

iv) establishment of time tables, standards and

procedures for the retention and disposition ofthe institutions records and information.

Essentially the introduction of this Act will clearly

entail extra duties and obligations on the part of

affected government entities.

Some of the services the public can expect

from the affected agencies are that, the

agency must:-

locate and acquire information promptlyupon request;

select all types of appropriate media toservice the information needs of the

organization;

assist and co-operate with other staffmembers within the organization who

maintain personal or divisional information

files or retrieval systems;

provide space and equipment for the studyof documents;

identify closely with project research andtraining activities by attending meetings

relevant to the organizations functions,

assisting with displays and preparing

brochures to better educate and inform thepublic;

advise senior management on new andmore efficient methods of information

dissemination (i.e, microform, computer,reprographics etc);

act as a storage and retrieval point for allreports and studies generated by the

organization and its subsidiaries.

These services are not exhaustive however

and will periodically need to be updated in

order to adapt to emerging new trends in the

field of records and information

management. s

e. bryan - the proposed jamaican acces to information act (part1) [acarm newsletter]

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