“…3. (1) The object of this Act is to extend the right of members of the public to access to information in the possession of public authorities…”
—Objects statement in FoIA

“…Because outside of national security matters and matters of the Cabinet…there are few other matters on the government files, that should really be secret…”
—PM Dr Keith Rowley at the post-Cabinet press briefing on 23 May 2019.

The objects statement in the Freedom of Information Act (FoIA) and the PM’s statement, with which I entirely agree, are both cause for a pause in this haste to dilute citizens’ rights in this arena. The previous article was submitted before the proposed amendments were released, so this one starts with some important background to set the current imbroglio in context.

PNM’s founder Dr Eric Williams’ epic and imperishable work took him through an absolute forest of official information to recalculate our bearings and history so that we could understand our contribution and our place in the world. Today’s PNM would not have existed without the tremendous efforts of patriots of Dr Williams’ stature, but at the same time, today’s PNM finds itself deeply opposed to the very concept of Freedom of Information. Present-day researchers here in T&T have a very hard time getting official documents to prepare a critical study on anything which is official policy or practice.

Here is another citation in support of that assertion –

As Dr Terrence Farrell recounted, in ‘The Underachieving Society‘ (2012), in relation to the Vision 2020 exercise –
“…certain key persons involved in the implementation of policy initiatives elected not to participate. Calder Hart, chairman of UDECOTT,…did not participate. Ken Julien, president of the University of Trinidad & Tobago, and Noel Garcia, head of the Housing Development Corporation, key agencies in the implementation of government policy, also were not part of the Vision 2020 exercise…” (pg 203)

His further note, on the same page, is sobering –
“…the subcommittees were plagued by the inadequacy of data. Over the decades since the abandonment of planning, the Central Statistical Office has steadily declined in terms of the quantity and quality of its statistical output so much so that there are now serious questions about the integrity and reliability of certain data produced…”

Vision 2020 was a flagship PNM policy during the tenure of the then PM, the late Patrick Manning, yet his key officers were able to frustrate that process.

I say all that so that the light can enter to show this paradox. History really rich in irony, oui.

It is my view that the PNM is fundamentally hostile to the objects of the FoIA. Apart from the prior points, my memory does not tell of any cases in which that Act was used by PNM or its agents during their post-1999 stints in opposition. Of course I am subject to correction, but this kind of undisclosed disdain is visible only upon examination of the lacunae.

The current AG had promised several times to review the Act and I was always on the lookout for a substantial dilution, given the background.

Like some demented diet, we seem to have a strong appetite for fact-free decision-making, so much so that the current proposals are being advanced without publication of the Annual Reports on the operation of the FoIA as required by S.40 since 2010. Of course, both sides of the so-called political divide are fully committed to transparency and good governance, yet neither mentions the failure or refusal to Report on the operation of the Act. The cozy consensus is intact, incredible, but true.

The proposals are to both increase the time-limit for decisions on FoIA requests and also to have those decisions double-checked by the Attorney General’s office. The initial proposal was to increase the time-limit from the present 30 days allowed by S.15 of the FoIA to 180 days. That has now been amended to 75 days, which is too long in my view. Substantially, the proposed changes do nothing to address the stated problem of Public Authorities giving invalid refusals on requests for information, with the repeated claims of excessive costs awarded to successful litigants. The decision-making process is not improved by the proposed extension of time, since the key issue was not mentioned at all by the AG in his attempted rationalisation of his proposals. The award of costs is actually made by the Courts, so there is little scope for the Executive to treat with that as proposed.

In my view those proposals do nothing to improve the FoIA and in fact amount to a dilution of citizens’ rights to information. In this so-called Information Age, what we need is a substantial fortification of our rights under the FoIA.

Apart from the missing S.40 Reports, the link between a request under the Act and a refusal, is the official decision. S.23 of the Act requires a Public Authority making a refusal to issue a Decision Notice to the applicant to clearly give its reasons.

In only one of the several matters in which I have been directly involved was a Decision Notice provided and that was on the wrong basis. In many High Court and Appeal Court rulings one can read the lament of the judges that the Public Authorities did not comply with the S.23 requirements. Penalties need to be introduced for the failure or refusal to provide reasons for these decisions, that would be good law. Those penalties need to amount to an extra payment in cases with missing Decision Notices in which litigants prevail over the Public Authority.

These proposed amendments are a serious dilution of our rights to information and they are entirely unsupportable.