E. Bryan - The Proposed Jamaican Acces to Information Act (Part1) [ACARM Newsletter]
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Transcript of E. Bryan - The Proposed Jamaican Acces to Information Act (Part1) [ACARM Newsletter]
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8/9/2019 E. Bryan - The Proposed Jamaican Acces to Information Act (Part1) [ACARM Newsletter]
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ACARM Newsletter
Issue 31
Antigua and Barbuda Australia Bahamas Bangladesh Barbados Belize Botswana Brunei DarussalamCameroon Canada Cayman Islands Cyprus Dominica Fiji The Gambia Ghana Great Britain GrenadaGuyana India Jamaica Kenya Kiribati Lesotho Malawi Malaysia Maldives Malta Mauritius MozambiqueNamibia Nauru New Zealand Nigeria Pakistan Papua New Guinea St Kitts and Nevis St Lucia St Vincent andthe Grenadines Seychelles Sierra Leone Singapore Solomon Islands South Africa Sri Lanka SwazilandTanzania Tonga Trinidad and Tobago Tuvalu Uganda Vanuatu Western Samoa Zambia Zimbabwe
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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ACARM Newsletter
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Antigua and Barbuda Australia Bahamas Bangladesh Barbados Belize Botswana Brunei DarussalamCameroon Canada Cayman Islands Cyprus Dominica Fiji The Gambia Ghana Great Britain GrenadaGuyana India Jamaica Kenya Kiribati Lesotho Malawi Malaysia Maldives Malta Mauritius MozambiqueNamibia Nauru New Zealand Nigeria Pakistan Papua New Guinea St Kitts and Nevis St Lucia St Vincent andthe Grenadines Seychelles Sierra Leone Singapore Solomon Islands South Africa Sri Lanka SwazilandTanzania Tonga Trinidad and Tobago Tuvalu Uganda Vanuatu Western Samoa Zambia Zimbabwe
[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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ACARM Newsletter
Issue 31
Antigua and Barbuda Australia Bahamas Bangladesh Barbados Belize Botswana Brunei DarussalamCameroon Canada Cayman Islands Cyprus Dominica Fiji The Gambia Ghana Great Britain GrenadaGuyana India Jamaica Kenya Kiribati Lesotho Malawi Malaysia Maldives Malta Mauritius MozambiqueNamibia Nauru New Zealand Nigeria Pakistan Papua New Guinea St Kitts and Nevis St Lucia St Vincent andthe Grenadines Seychelles Sierra Leone Singapore Solomon Islands South Africa Sri Lanka SwazilandTanzania Tonga Trinidad and Tobago Tuvalu Uganda Vanuatu Western Samoa Zambia Zimbabwe
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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Antigua and Barbuda Australia Bahamas Bangladesh Barbados Belize Botswana Brunei DarussalamCameroon Canada Cayman Islands Cyprus Dominica Fiji The Gambia Ghana Great Britain GrenadaGuyana India Jamaica Kenya Kiribati Lesotho Malawi Malaysia Maldives Malta Mauritius MozambiqueNamibia Nauru New Zealand Nigeria Pakistan Papua New Guinea St Kitts and Nevis St Lucia St Vincent andthe Grenadines Seychelles Sierra Leone Singapore Solomon Islands South Africa Sri Lanka SwazilandTanzania Tonga Trinidad and Tobago Tuvalu Uganda Vanuatu Western Samoa Zambia Zimbabwe
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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ACARM Newsletter
Issue 31
Antigua and Barbuda Australia Bahamas Bangladesh Barbados Belize Botswana Brunei DarussalamCameroon Canada Cayman Islands Cyprus Dominica Fiji The Gambia Ghana Great Britain GrenadaGuyana India Jamaica Kenya Kiribati Lesotho Malawi Malaysia Maldives Malta Mauritius MozambiqueNamibia Nauru New Zealand Nigeria Pakistan Papua New Guinea St Kitts and Nevis St Lucia St Vincent andthe Grenadines Seychelles Sierra Leone Singapore Solomon Islands South Africa Sri Lanka SwazilandTanzania Tonga Trinidad and Tobago Tuvalu Uganda Vanuatu Western Samoa Zambia Zimbabwe
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