ACCESS TO INFORMATION (ATI) ACT, 2002
It was not until 2001 that Jamaicans for Justice (JFJ) was able to be involved in the lobby for an Access to Information Act, despite being approached by the Carter Centre in 2000. Once again the trigger was the call for submissions from a Joint Select Committee of Parliament. Talk of implementing a Freedom of Information law had begun years before and significant work had been done by the Carter Centre, the Media Association of Jamaica (particularly the Gleaner Company) and the University of the West Indies to explore the issue. By the time JFJ got involved, the third draft of the Bill was being tabled in Parliament.
The JFJ team was concerned that government information was not readily accessible by the public as was their democratic right and this access was critical to their ability to participate in the decision-making process of their country. The Act was seen as providing a powerful tool to enable citizens to exercise their right to information, effect change, hold the government accountable for decisions made and help expose corruption and inefficiencies in government activities.
It was a joint lobby effort involving Transparency International (represented by Beth Aub), the Farquharson Institute of Public Affairs (represented by Frank Phipps and Martin Aub) and Nancy Anderson (represented the IJCHR). Later on the University of the West Indies (UWI) Guild of Students and the Jamaica Civil Service Association (JCSA) began an informal liaison to tackle the issue.
The group, after a thorough reading of the Bill and research on the issue, including a comparative look at other jurisdictions, wrote several submissions. The submissions were coupled with a well-planned advocacy strategy which included media outreach and direct lobbying of Parliamentarians. Spokespersons appeared on many radio and television shows extolling the merits of freedom of information and arguing for the changes they wished to see. Letters were written to members of the Joint Select Committee and meetings or discussions with individual members held. Members of the coalition attended all sittings of the Joint Select Committee and reported on all proposed changes.
It was a very effective campaign thanks to the tireless efforts of members of all the groups concerned. Of particular importance was the support of the JCSA and its president Wayne Jones, if the civil servants were supporting transparency, then who could be against it?
This position of support for access to information by civil servants remains extremely rare, both regionally and internationally.
The efforts of the group resulted in significant amendments to the original draft of the Act that was tabled in June 2002 but despite these changes the legislation was not as strong as it could have been. Attention now turned to ensuring effective implementation guided by strong regulations.
Shortly after the Act was passed the Minister of Information, Colin Campbell, established an Access to Information Unit16 in his Ministry and engaged Attorney Aylaire Livingstone to guide the unit and the process of implementation. Miss Livingstone, working with a skeleton staff, began the arduous process of changing the culture of secrecy within the civil service and ensuring that the Act could be implemented effectively. She worked also with civil society and ensured that when the regulations to accompany the Act were being reviewed, JFJ, the Farquharson Institute and IJCHR had significant input. This consultative process ensured that when the regulations were tabled in 2004 and the Bill amended to allow for phased implementation, civil society was fully supportive of the process. The Act was implemented in January 2004 and was phased in throughout government ministries and agencies over an 18 month period.
Implementing and Using: the Key to Success
Aware that it would be important to use the law to ensure ATI’s successful implementation, JFJ began a number of critical activities in the period 2003 onwards. Members were aware of the Act and the possibilities for using it and were urged to prepare requests to be submitted and tracked once the Act came into being. Significant work was undertaken together with the ATI Unit, to ensure that Access Officers in government were sensitized to their new roles and educated about the new responsibilities. Simultaneously JFJ worked with the Unit to ensure that strong regulations governed the Act and the functioning of the ATI Tribunal.
Aware of the general lack of public understanding of the new Act and its potential to impact their own lives, JFJ sought funding to engage with communities and to do a mass media campaign about ATI. The Canadian International Development Agency (CIDA) provided financial aid and workshops were held and radio and television ads on ATI were developed and broadcast. The CIDA grant also enabled JFJ to set up an ATI Help Desk and to build a special database to record requests. The Carter Centre provided the organization with materials, manuals and technical support for the processing and monitoring of requests. The ATI Help Desk was officially launched at the organization’s Grants Pen office on June 13, 2005. Citizens were aided in requesting documents held by public authorities, including the organizations and entities partly owned by government such as public utilities.
Collaboration with the Carter Centre also enabled JFJ to interact with other communities and NGOs to build awareness of the Act and its powerful potential. The Carter Centre project in Jamaica facilitated the establishment of the Volunteer Attorneys Panel, provided technical expertise to the government and civil society and worked to stimulate interest in the media in using ATI as an investigative tool. JFJ’s role was in building demand and monitoring and recording data on the compliance of the various ministries and agencies with the provisions of the Act. This was seen as critical, to an effective assessment of the functioning of the Act and to facilitate improving the government agencies’ ability to comply in a timely manner with ATI requests.
Through the Help Desk, JFJ was able to gather and analyse important data about the performance of the government in implementing the law. JFJ members’ requests formed the bulk of the early requests made under the ATI Act and formed the first challenges to denial of access at the level of the ATI Tribunal in 2005. Some of the rulings obtained from that Tribunal are ground-breaking for ensuring transparency in government operations.
The ATI Advisory Stakeholders’ Committee
At the suggestion of the ATI Unit, the ATI Advisory Stakeholders’ Committee was formed. Comprising many different civil society groups its role was overseeing the implementation of the Act, making suggestions for improvement where necessary and submitting recommendations for Parliamentary review. Established in 2004 with terms of reference agreed by the Minister of Information, this committee continues to function and to make representation to various Ministers of Information and Parliament. Since2005, the ATI Advisory Stakeholders’ Committee has collaborated with organizations including the Gleaner and later the ATI Unit to educate the public (including high school students) about ATI legislation by sponsoring and promoting use of the Act and essay competitions.
JFJ has continued to have a large focus on ATI. Funding continues to be sought to do work in communities and mass media to raise awareness of the Act and its ability to improve people’s lives. Most recently funding was received from the German Embassy. Through monthly workshops and a radio campaign, citizens were assisted with gaining information from government ministries and agencies and were educated about their right to access information. These activities continue to benefit the ordinary citizens of Jamaica to claim their rights.
Review of the Access to Information Act
The ATI Act was slated to undergo a mandatory review in 2006 by a Joint Select Committee of Parliament. The review was to take into account submissions from civil society groups and members of the public on the effectiveness of implementation as well as the views of the public officials whose duty it was to enforce the provisions of the Act.
Leading up to the review, there was a lack of any notification to interested parties about the appointment of the Parliamentary Committee and its scheduled first sitting on January 11, 2006. As a result, no member of the consortium of ATI users, JFJ, or the ATI Advisory Stakeholders’ Committee was able to attend the first sitting.
Despite this poor start a number of interest groups provided submissions to the Committee, including the ATI Advisory Stakeholders’ Committee, Jamaica Environment Trust, the Farquharson Institute of Public affairs, the Bank of Jamaica and JFJ. JFJ in its submission highlighted a number of areas where the Act needed clarification, strengthening and amending to make it a more effective tool for bolstering transparency in governance. The data that had been collected in the specially built database was analysed by Denton Tyndale, a volunteer, and presented as the only statistical analysis to the Joint Select Committee of Parliament reviewing the Act. In fact members of the Committee asked for further data from JFJ which was provided in a subsequent submission. That Joint Select Committee drafted an interim report which was presented to Parliament prior to it being prorogued in March 2006. Since the first sittings of that Review Committee in January 2006, there was a change of Prime Minister, with Mrs. Portia Simpson-Miller taking over from Mr. P.J. Patterson. Two different Ministers of Information were appointed under her and neither managed to complete the review. In 2007 general elections saw a change of government and subsequently two new Ministers of Information. Finally in 2009 a new Joint Select Committee of Parliament was formed to complete the review of the Act. This new committee received further submissions from stakeholders in civil society such as the Media Association of Jamaica, the ATI Advisory Stakeholders’ Committee, JFJ, along with others such as Carole Excell, an attorney-at-law who helped to write the regulations for the ATI Act. Among the suggested amendments have been:
• An enforcement mechanism for sanctions and penalties for non-compliance by public servants in providing requested information by the public and for long delays (over a 30-day period) in providing requested documents;
• A method of investigating government agencies’ conduct in ignoring or refusing requests or failing to carry out adequate searches for information;
• The need for a Review mechanism for decisions by public authorities to transfer applications
• The widening of the categories of non-exempt documents as well as including agencies such as Parliament and Government Commissions from which the public can access information;
• Reforming the Appeals Tribunal System so that there are timely responses from the tribunal, especially in getting dates set for hearings;
• Ensuring the precedence of the ATI Act over other legislative disclosure mechanisms.
The 2009 Joint Select Committee reviewing the Act has had several meetings and taken several encouraging decisions on strengthening the Act. It is expected to complete hearings in the 2010-2011 Parliamentary year.
ATI is a critical enabling right which enhances the citizens’ ability to enjoy all other rights. JFJ remains committed to ensuring that more and more persons are aware of their rights under this Act and are using the Act to improve their own lives and getting the information they ask for. JFJ is also committed to working with the ATI Unit, the government and the ATI Advisory Stakeholders’ Committee to ensure that the Act is strong and functioning effectively to ensure all citizens equal access to the information held by government on their behalf.
Excerpt from JFJ’s Justice Report 2010