Thursday 27 February, 2020

Gov't sends 'secret documents' matter to joint select committee

Prime Minister Andrew Holness (centre) leads a Cabinet meeting.

Prime Minister Andrew Holness (centre) leads a Cabinet meeting.

With criticism mounting about the proposal by the Andrew Holness-led Government to extend the waiting time for some Cabinet documents from 20 to 70 years, the administration has decided to place the matter before a joint select committee of the parliament.

The Government had intended to let the parliament determine the matter, based on a resolution tabled on Tuesday in the House of Representatives.

But, with criticism mounting, and with a call by corruption watchdog, National Integrity Action (NIA), for the matter to be placed before a joint select committee, the government has relented.

“We note the concerns raised by the public.

“As planned, at the next sitting of Parliament, the government will name a joint select committee to review the Access to Information Act, the Archives Act and the Official Secrets Act.

“The government will withdraw the interim measure of the Order Resolution and instead have the very important issues raised in the public debate go straight to the joint select committee for their consideration,’ the OPM statement said.

Specifically, the administration is pushing to amend The Access to Information (Cabinet Document) (Extension of Exemption Period) Order, 2019, and The Access to Information (Cabinet Documents) (Extension of Exemption Period) Order Resolution, 2019.

Both documents were tabled by Leader of Government Business Karl Samuda, on behalf of Prime Minister Andrew Holness.

The resolution seeks to extend the facility provided in Section 6(2) of the Access to Information Act, which allows for the exemption of an official document that has been in existence for 20 years, “or such shorter or longer period as the minister may specify by order, subject to affirmative action, and seeks to have the order affirmed to exempt these documents from public access for 70 years after they have been in existence”.

Among the documents currently exempted from disclosure are those pertaining to: national security, defence, international relations; law enforcement; legal privileges; the national economy; Government's deliberative processes; business affairs of others (trade secrets, etc); and personal privacy.

However, corruption watchdog, National Integrity Action (NIA) immediately took issue with the proposal, describing it as a “retrograde step”.

NIA said the proposal should be withdrawn “in the absence of compelling reasons and an unambiguous explanation related to Jamaica’s specific circumstances.”

NIA also noted, among other things, that:

1.  Jamaica’s Constitution in which the Charter of Fundamental Rights and Freedom guarantees to every Jamaican “the right to seek, receive, distribute or disseminate information”.

2.  Jamaica’s Access to Information Act which correctly stipulates transparency as a “fundamental principle underlying Jamaica’s system of constitutional democracy”.

3.  Provisions in democracies such as Trinidad & Tobago, Guyana, St Lucia, South Africa, Australia, Canada, the United States and others, none of which appear to sequester Cabinet documents from their respective public for anywhere near seventy years.

In responding to the criticisms, OPM argued that the extension became necessary as Cabinet considered a request for the Minutes of Cabinet meetings in 1975-1976 under the Access to Information Act, which provides for the release of exempted documents after 20 years of their coming into existence.
“The Cabinet considered that while 20 years may be sufficient time for most issues to lose currency, there were still cases in which the information released could be:

1.  Against the public interest.

2.  A violation of the right to privacy of individuals who are directly or indirectly captured in Cabinet documents and whose information would not normally be the subject of an Access to Information request.

3.  A violation of proprietary information which could have a commercial impact.

4.  A violation of bilateral or multilateral agreements and understanding within which, information was shared by foreign governments or agencies.

5.  A breach of national security and the sources and methods of the intelligence networks of the security forces”.

Additionally, the Cabinet also considered whether the actual deliberations of Cabinet captured in Minutes should be released since all members, regardless of their view on a matter, in support or objection, are collectively responsible for the decision.

“The release of records of Cabinet deliberations will most certainly have an impact on how freely and forthrightly Cabinet members bring their knowledge and judgement to bear on the affairs of the nation presented to them for decisions,” the statement said.
It noted that while the law gives the Prime Minster the discretion to issue certificates of exemption for Cabinet documents, having regard to the period, nature and sensitivity of the particular request under consideration, Cabinet recommended an extension of the exemption period, instead of the issuance of an exemption certificate.  
“We considered what would be a sufficient timeframe in light of many valid concerns about issues dealt with during the period of the request that are still of currency, including individuals’ right to privacy and proprietary information.

“The right to privacy of an individual’s personal information would certainly last their lifetime, which we estimate at 70 years. Patents, copyrights and other proprietary information on average would last certainly more than 20 years and can extend to more than the lifetime of the owner,” it said.
OPM also said the Cabinet considered other Commonwealth jurisdictions such as Canada, Australia and the United Kingdom where provisions are made for the exemption of certain Cabinet documents, but which may be released upon request after determination of applicable tests such as public interest, national security and privacy rights.

The issues that were considered and weighed would have been disclosed during the Parliamentary debate. However, having tabled the Order Resolution to give time for Parliamentarians to prepare, the public debate has gone ahead of the Parliamentary process.

With the matter now set to go before a joint select committee, the Government said the request for Cabinet documents currently before the authorities will be reconsidered.

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