I was just reading over the discussion paper on PATI published in 2005. I see that the question of whether or not PATI would be retrospective or apply only to information created after the date of the legislation having been passed was raised there. The relevant section is 2.5, Retrospection, which reads:
The Government is still considering whether PATI legislation should only apply to information created after the date that the legislation is passed, or if the law should be completely retrospective. Applying the legislation to information created before the PATI bill is enacted would provide access to a greater amount of information. However, retroactivity would also generate significant costs to establish the enhanced records management systems that would be required and to potentially hire additional staff to collect, collate and manage the information.
I should also note that this discussion paper also defines the terms ‘vexatious’ and ‘voluminous’ as I would have liked seen added to the ‘interpretation’ part of the draft legislation. I personally would advocate for these interpretations to be clearly added to the draft legislation. The discussion document defines these as:
The term “vexatious” describes requests from people who attempt to use public access to information to frustrate the day-to-day activities of government, or to harass individual public servants. Where a pattern of abuse is apparent, requests made by a particular requester can be labelled “vexatious” by the decision-maker.
The term “voluminous” refers to requests for information that would require a large volume of information to be released. These types of requests cannot be provided without diverting substantial resources or
causing disruption to the day-to-day functions of government.
Furthermore this section clarifies that:
Where requests for information are deemed vexatious or voluminous, government would be able to deny access. However, to prevent genuine requests being denied because they appear to be vexatious or voluminous, these cases would be automatically referred to the Information Commissioner for an independent review.
[NB – the relevant section here is 2.14.]
Other interesting parts of the discussion paper that should be noted when reviewing the draft PATI legislation are sections 4.6.9 and 4.6.10. Section 4.6.9, entitled Decision Making & Policy Advice, states (in part) that:
A number of countries have exempted decision-making and policy advice, or have found ways around disclosing this type of information. The Government feels that taking this approach would be a mistake. Being informed about how and why important decisions are made is fundamental to the democratic process and the community’s ability to participate in public affairs. In other jurisdictions, refusing to make policy advice available publicly has undermined one of the goals of public access to information – to increase public participation in decision-making. If the public has little or no access to the background information, opinions, advice, and facts that went into a decision, then the ability to voice informed opinions would be severely undermined.
Therefore the Government proposes that decision-making and policy advice would not be
completely exempted from PATI legislation.
While section 4.6.10, Deliberations of the Cabinet, reads:
Historically, Cabinet records have been exempt in order to protect ministerial responsibility, the hallmark of Westminster style governments. This principle supports the long-standing convention that decisions flowing from Cabinet are the collective decisions of the Government. Prematurely disclosing Cabinet deliberations can undermine ministerial responsibility and impair the Cabinet’s ability to make important decisions based on free and frank discussion.
However, disclosing Cabinet decisions once they are implemented has no negative impact on ministerial responsibility, and would give the public that information well in advance of the existing 30-year rule.
Therefore, the Government proposes that any information that would prejudice Cabinet’s ability to make decisions collectively, including Cabinet deliberations, would be exempt from PATI legislation and not be released. It is also proposed that Cabinet decisions be disclosed to the public, either proactively or on request, but after they are implemented and subject to all exemptions under the legislation.
And section 4.7, Ministerial Certificates, is also of interest, reading:
Some jurisdictions give government Ministers and certain other public officials the power to prevent information from being released through the use of veto certificates. However, these certificates have been highly criticised by independent bodies such as Law Reform Commissions and ombudsmen because they are subject to abuse and lack the oversight necessary to ensure that PATI legislation is administered fairly. The Government feels that the proposed exemptions for Bermuda and the appeals process as laid out in Section 6 adequately address releasing or withholding information. The use of certificates is therefore unnecessary, and not in keeping with the spirit of PATI legislation.
Annex D, ‘List of International Exemptions – A Comparative Approach’, is also worth reviewing for reflecting on the proposed areas of exempted information in the draft PATI legislation.
While I can understand that making the act retroactive would ‘generate significant costs’, and therefore the option of making it ‘forward looking only’ is attractive, I think they have made a mistake for opting for the cheap option. After all, the same document also reads (section 8.0):
Although public access to information would require additional expenditure of funds, it has a number of cost benefits such as improved records management, and increased efficiency and accountability.The resulting improvement in government effectiveness makes public access to information worth its financial cost to Bermudian society.
Again, I can understand the bureaucratic and financial costs involved in making the act retroactive (and the discussion paper summarises many of these in sections 5.1 and 5.2). However the act of not applying the legislation retroactively casts suspicion on the motives of the incumbent government and generally reduces the credibility of the exercise as a whole. It would be far better to state that information created following the implementation of the legislation would be immediately accessible, and that information dating prior to that date will be phased into accessibility over time. Even one retrospective year added on each year would be better than nothing and go some way into allaying any suspicions.