Transcript Access to Information: Bolivia

Access to Information:Jamaica
Access to Information: Jamaica
Access to Information:
Procedural and
Substantive Issues: A
selection of decided ,
FOI and ATI cases
Access to Information:Jamaica
"When government begins closing
doors, it selectively controls
information rightfully belonging to
the people."
Judge Damon Keith, U.S. Sixth
Circuit Court of Appeals
Access to Information:Jamaica
ATI Laws around the World
• Over 50 countries now have ATI laws
• Older democracies – United States,
Canada and Australia, Ireland
• Central and Eastern Europe- Bulgaria
Hungry, Czech Republic
• Americas- Mexico, Columbia
• East- Thailand, Japan, Philippines
• Europe- Sweden , Ireland, United Kingdom
• Caribbean- Trinidad, Belize, Jamaica,
Bermuda
Access to Information:Jamaica
Enforcement models
• There is no one approach used around the
world in the hearing or review of access to
information decisions.
• United States and South Africa, aggrieved
information requesters must appeal directly
to the Federal Court.
• Mexico, Australia, and the US State of
Connecticut, the law provides for an
intermediary body with the power to hear
complaints and order the release of
information;
Access to Information:Jamaica
Enforcement models
• Sweden and Hungary, the authority of the
intermediary body is limited to providing
recommendations only.
• Canada has an information commissioner who
if their decision is not followed may take
matters to Court for judicial review.
• The United Kingdom only passed a law this
year 2005
• The international trend is to establish an
intermediary body, like Jamaica’s Appeals
Tribunal, to review agency decisions with the
power to order the public authority to comply
with its findings and decisions.
Access to Information:Jamaica
How to find case law on the
worldwide web
• USA Freedom of Information Act 1966
• www.citizen.org/litigation/
• Canada Access to Information Act
• http://www.infosource.gc.ca/bulletin/2003/bulletin07_
e.asp
• Australian Freedom of Information Act 1982
• www.austlii.edu.au/au/cases/cth/aat/
• Ireland
• http://www.oic.gov.ie/djudge.htm
Access to Information:Jamaica
Access to Information : What
does it mean?
• “Exempting documents should be
the exception rather than the rule”.
• Bacon International Inc. v.
Department of Agriculture and
Agri-Food Canada
Reference:
• [2002] A.C.F. No.776 (QL)
(F.C.T.D.)
Access to Information:Jamaica
Access to Information : What
does it mean?
• “It is unacceptable, in a democratic
society, that there should be a
restraint on the publication of
information relating to government
when the only vice of that
information is that it enables the
public to discuss, review and
criticize government action.”
• Commonwealth of Australia v John
Fairfax and Sons Ltd and Others
(1980) 32 ALR 485, Mr Justice
Mason
Access to Information:Jamaica
Relevance of ATI /FOIA case law from other
jurisdictions
• The decision of a court of another jurisdiction
only acts as persuasive authority. It is NONBINDING . However it may be PERSUASIVE.
The degree of persuasiveness is dependent
upon various factors, including,:• First, the nature of the other jurisdiction.
• Second, the degree of persuasiveness is
dependent upon the level of court which
decided the precedent case in the other
jurisdiction.
• Thirdly the date of the precedent case,
• Fourthly, the judge's reputation may affect the
degree of persuasiveness of the authority
Access to Information:Jamaica
Relevance of ATI /FOIA case law from other
jurisdictions
Where a lawyer cannot find a
binding precedent, he or she may
rely on a non-binding precedent from
another jurisdiction.
While not obliged to do so, the court
may be impressed with or be
persuaded by the reasoning and be
prepared to adopt the rule
established by the foreign case.
Access to Information:Jamaica
Relevance of ATI /FOIA case law from other
jurisdictions
Usually the court will establish
whether:• The facts, statute and judgment are
relevant and applicable in Jamaica
• The legal system is based on
common law principles, a colonial
heritage from the United Kingdom.
• Specific Similar tribunals
/Information Commissioners have
utilized this Approach
Access to Information:Jamaica
Relevance of ATI /FOIA case law from other
jurisdictions
• Australia: -In Harris v Australian
Broadcasting Corporation and Others
(1984) 51 ALR 581, at 587, the Full
Court of the Federal Court of Australia
has taken into consideration Us
freedom of Information Act decisions.
In this case they decided that the FOI
Act must be interpreted according to
its own terms. However guidance, as
the Court found in Harris's case, may
be had from the US legislation.
Access to Information:Jamaica
Relevance of ATI /FOIA case law from
other jurisdictions
• The only way in which these judgments can
be utilized by attorneys is if they are
published and easily accessible.
• Ireland:-The Information Commissioner
makes legally binding decisions arising from
reviews conducted under section 34 of the
Freedom of Information Acts.
• It publishes some of these decision and also
those which are of general interest or
contain points of interpretation or of
application of provisions of the FOI Acts
which warrant broader release.These
matters may be brought before the courts
on APPEAL. Such Judgments are also
published .
Access to Information:Jamaica
Substantive and Procedural
Issues
Procedural and Substantive
• Information already in the Public Domain
• Inappropriate Application of Exemptions
• Deliberative Process and Public Interest
Test
• Cabinet Documents and Exclusions
• Legal Privilege and Personal Privacy
• Breach of Confidence
• Commercial Information
• Deletion of Exempt Matter/Severance
Access to Information:Jamaica
Information already in the public
domain
• S.6 ATI – where an official
document is open to access by
the public pursuant to any other
enactment as part of a public
register or otherwise-access to
that document shall be obtained
in accordance with the
provisions of that enactment or
those procedures
Access to Information:Jamaica
Information already in the public
domain
• Canadian National Railway Company v. Attorney
General of Canada [2002] F.C.J. No. 1283 (QL)
(F.C.T.D.)
• Every year, a list of the non-rail assets was send by a
privatized railway to Transport Canada by an
agreement.
• Transport Canada received a request to disclose
the list for 1996 and 1997, but refused the request at
the Railway companies request based on information
given in confidence. The documents contain the
following information: name of the purchaser, the
municipality of the property, its approximate surface
area, the selling price, the date of sale, the costs of
the sale and the net revenue of the sale.
Access to Information:Jamaica
Information already in the public
domain
• The parties agreed that the costs associated
with the sale and the net revenue of the sale
must not be disclosed.
• The person requesting access filed a
complaint regarding the decision not to
disclose the information.
• Transport Canada decided it would disclose
the contents of this list for the years in
question. The reasons for this decision
included the fact that the information
requested was accessible to the public
because it was registered at the registry
offices of various provinces.
Access to Information:Jamaica
Information already in the public
domain
• Pelletier J. noted that confidentiality cannot not be
raised in a case where the public has access to
information or when the information can be obtained
from sources to which the public has access
• The Court then examined the issue whether the Act
only requires that the public have access to sources
containing the information in question, or if it is
necessary that the public actually be able to have
access to this information. The applicant alleges
that, although the information was registered at
registry offices, it would be impossible to access this
information by only knowing the purchaser's name
or that the applicant was the vendor.
• In the Court's view, any ambiguity with respect to
this question must be resolved in favour of
disclosure and the files were to be disclosed.
Access to Information:Jamaica
Substantive Issues : -Deliberative
Process Exemption and PI
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Deliberative Process s.19 ATI- Exempt if contains
(a) opinions, advice or recommendations prepared for
(b) a record of consultations or deliberations arising in
the course of proceedings of Cabinet or committee.
Excludes document of a factual nature, studies, tests,
surveys of a scientific or technical nature
This exemption could include:
Advice to Ministers by civil servants,
Discussions between Ministers or between Ministers and
their official advisors
Advice or recommendations on policy decisions
Expert advise and studies
THE PUBLIC INTEREST TEST MUST BE APPLIED
s.19(3)
Access to Information:Jamaica
Substantive Issues : Deliberative Process Exemption
• ThePI
relevant provisions of the Australian Act is s.36
and
of the FOI Act
• : "36. (1) a document is an exempt document if it is
a document the disclosure of which under this Act:
• (a) would disclose matter in the nature of, or relating
to, opinion, advice or recommendation obtained,
prepared or recorded, or consultation or deliberation
that has taken place, in the course of, or for the
purposes of, the deliberative processes involved in
the functions of an agency or Minister, or of the
Government of the Commonwealth; and
• (b) would be contrary to the public interest." “
• (5) This section does not apply to a document by
reason only of purely factual material contained in
the document."
Access to Information:Jamaica
Substantive Issues : Deliberative Process
Exemption
• Australia: Freedom of Information Act 1982
•
THOMAS LINCOLN CHAPMAN and WENDY
JENNIFER CHAPMAN v. MINISTER FOR ABORIGINAL
AND TORRES STRAIT ISLANDER AFFAIRS
• Application for the review of a decision of
the Minister for Aboriginal Affairs to refuse
access to the contents of a letter sent by
the Minister to the Prime Minister.
• The letter concerned a declaration to be
made in relation to protection of
Aboriginal sites from the effects of the
construction of a bridge.
Access to Information:Jamaica
Substantive Issues : Deliberative Process Exemption
• The reasons for the refusal by the Minister was
that the letter would disclose matter in the
nature of, deliberative process and that it would
not be in the public interest.
•
NOTE:The declaration was not raised in
Cabinet,
• The appellants claimed that what the Minister
was doing in his letter, was giving the Prime
Minister the opportunity to comment on, or
overrule, the Minister's proposed declaration
and that under the Act the Minister was not
entitled to act upon the direction of either the
Cabinet or his colleagues .
Access to Information:Jamaica
Substantive Issues : Deliberative Process Exemption
• The Tribunal first determined if the document
was consultative or deliberative –Found it
was consultative i.e. sought advice or
counsel from a person
• Then the Tribunal considered whether the
letter contains any statements of fact which,
may not be exempt from disclosure and if so,
whether those parts of the letter can or
should be severed and released – The
Tribunal determined that part of letter
contained proposals part conclusions.
Conclusions= facts and severed the letter
Access to Information:Jamaica
Substantive Issue – The Public Interest
• The court found the following reasons
irrelevant in relation to making a decision
on whether or not a release was in the
public interest:
• The fact that the letter involves
consultation at the highest level of
government between a Minister and the
Prime Minister .
• That the issues were highly controversial
• The stated need of the Minister to consult
with the Prime Minister "with complete
frankness".
Access to Information:Jamaica
Substantive Issues : Deliberative Process Exemption
• If a request was made for
correspondence between the Minister
of Land and Environment and the
Prime Minister (that contains the
reservations of the Minister to the
declaration, requests advise and
discusses the value of the land) on a
proposal for the declaration of a
Protected Area in Trewlany,
Jamaica,would you recommend this
be released, or claim an exemption
and why?
Access to Information:Jamaica
Cabinet Documents
• S.15 of ATI Act Document is exempt if it is a
Cabinet Document that is
• (a) a Cabinet Submission, Note, or other
document created for submission to Cabinet
and it has been or is intended to be
submitted,
• (b) a Cabinet Decision, or other official
record of deliberation of Cabinet
• DOES NOT apply to documents appended
that contain material of a factual nature,
reports, studies scientific or technical nature
or document that publishes a decision
Access to Information:Jamaica
Canada’s Access to Information ActExclusion
• S.69 –(1)This Act does not apply to confidences of
the Queen's Privy Council for Canada, including,
without restricting the generality of the foregoing,
• (a) memoranda the purpose of which is to present
proposals or recommendations to Council;
• (b) discussion papers the purpose of which is to
present background explanations, analyses of
problems or policy options to Council for
consideration by Council in making decisions;
• (c) agenda of Council or records recording
deliberations or decisions of Council;
• (d) records used for or reflecting communications or
discussions between ministers of the Crown on
matters relating to the making of government
decisions or the formulation of government policy;
Access to Information:Jamaica
Canada’s Access to Information Act
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(e) records the purpose of which is to brief ministers of the
Crown in relation to matters that are before, or are
proposed to be brought before, Council or that are the
subject of communications or discussions referred to in
paragraph (d);
(f) draft legislation; and
(g) records that contain information about the contents of
any record within a class of records referred to in
paragraphs (a) to (f).
Paragraph 69(3)(b) of the Access Act states:
(3) Subsection (1) does not apply to
(b) discussion papers described in paragraph 1(b)
(i) if the decisions to which the discussion papers relate
have been made public, or
(ii) where the decisions have not been made public, if four
years have passed since the decisions were made. R.S.
1985, c. A-1, s.69; 1992, c.1 s.144 (F).
Access to Information:Jamaica
Cabinet Documents
•
CANADA (INFORMATION COMMISSIONER) V.
CANADA (MINISTER OF THE ENVIRONMENT), [2003]
F.C.J. NO. 197 (C.A.)
• The requester applied under the Access to
Information Act for access to Cabinet information
dealing with a specific fuel additive, held by
Environment Canada. In 1995 Cabinet had made
public its decision to prohibit the inter-provincial
trade and import of the additive for commercial
purposes, and the relevant legislation was passed
in 1997.
• The REQUEST:- “Discussion Papers, the purpose
of which is to present background explanations,
analysis of problems or policy options to the
Queen's Privy Council for Canada for consideration
by the Queen's Privy Council for Canada in making
decisions with respect to Methylcyclopentadienyl
Managenese Tricarbonyl (MMT)”
Access to Information:Jamaica
Cabinet Documents
• Environment Canada denied access to the
records on the basis of the Cabinet
confidences exclusion
• On review, the Information Commissioner
decided that portions of the records
consisting of background explanations,
analyses of problems or policy options should
be disclosed, since they fell within the
“discussion papers” exception to the
exclusion. The Commissioner applied for
judicial review.
• The Government argued that the Cabinet
confidence was an exclusion which was not
reviewable by the courts in Judicial Review
proceedings
Access to Information:Jamaica
Cabinet Documents
• The Federal Court, Trial Division, agreed with
the Commissioner that any information that
could be described as background
explanations, analyses of problems or policy
options was not excluded and should be
disclosed.
• The Court specified that this exercise does not
require a line-by-line analysis of the
documents. What is required, according to the
Court, is that the person reviewing the
documents determines whether there is, within
or appended to the documents, an organized
body or corpus of words which, looked upon its
own, meets the definition of "discussion
papers“ and that such corpus be severed and
Access to Information:Jamaica
Canada’s Access to Information ActCabinet documents
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•
You have done up a draft Cabinet decision on the
acquisition of a computer system that allows the Jamaican
Government to store fingerprints and track the number of
times persons who have committed crimes have been
identified by fingerprint evidence. The draft Cabinet
document has appended to it a technical study of an
Expert from Canada on the use of this system in Canada
and its track record. You then submit it to Cabinet for a
decision which you are awaiting.
You receive a request for “ Any draft Cabinet decision on
computer systems that store fingerprints and all
documents appended to such a draft Cabinet submission ,
note or other document created for submission to Cabinet,
the purpose of which is to present information of a
technical nature , and all reports, studies and tests
appended there to; for consideration of the Cabinet”
Would you release this document(s)? and why?
Access to Information:Jamaica
Legal Professional Privilege
• The principle is based upon the need to protect a
client’s confidence that any communication with
his/her professional legal adviser will be treated in
confidence and not revealed without consent.
• Legal
professional
privilege
protects
communications between a professional legal
adviser and client from being disclosed, even to a
court of law. However the Jamaican Courts have
applied the leading case of Buttes Gas and Oil Co.
v. Hammer [1980] 3 All E.R. 475, at page 485, to
look at these documents. Lord Denning M.R.
described the practice of judges calling for and
looking at the documents themselves “as
(something) we often do nowadays.”
• Privilege attaches to the information itself and
belongs to the client
Access to Information:Jamaica
Legal Professional Privilege
• Advice privilege – where no litigation is
contemplated or pending
• Litigation privilege – where litigation is
contemplated or pending
• Litigation privilege attaches to all documents,
reports, information, evidence and the like
obtained for the sole or dominant purpose of
the proposed or on-going litigation.
• For legal professional privilege to apply,
information must have been created or brought
together for the dominant purpose of litigation
or the seeking or provision of legal advice.
Access to Information:Jamaica
Legal Privilege and Personal Privacy
• British Columbia
• Legal Services Society v. British Columbia
(Information and Privacy Commissioner), [2003]
• B.C.J. No. 1093 (C.A.)
• The Legal Services Society is the provincial
body that administers the legal aid program in
British Columbia.
• A newspaper reporter asked for a list of the top
five criminal billers by name and amount billed
during a specified period. The Society decided
to disclose the amounts billed by the 10
lawyers, but not their names. The Society
indicated that it was withholding the names on
the basis of the solicitor-client privilege and
personal privacy exemptions.
Access to Information:Jamaica
Legal Privilege and Personal Privacy
• On appeal, the Commissioner held
that the names of the lawyers are not
privileged because, in this case, they
were not associated with any specific
client (Order 322-1999).
• The Commissioner stated that the
names of the lawyers alone could not
be privileged, because the purpose of
the solicitor-client privilege exemption
is to protect confidentiality on behalf of
clients, not lawyers.
Access to Information:Jamaica
Legal Privilege and Personal Privacy
• On judicial review, the Supreme Court quashed the
Commissioner’s decision, holding that the privilege
applied because a “diligent individual” could
ascertain the identity of specific clients from the
information at issue, and this in turn would reveal
privileged information, i.e., the fact that the person
received legal aid.
• The British Columbia Court of Appeal upheld the
lower court’s decision. Specifically, the Court of
Appeal ruled that the possibility of a breach of
solicitor-client privilege is a “material one”, and that
the Commissioner’s decision was therefore
“incorrect”. The Court stated that a decision by the
commissioner that places solicitor-client privilege at
risk is not acceptable even if it would be considered
reasonable.
Access to Information:Jamaica
Actionable Breach of Confidence
• Actionable breach of confidence :
• A duty of confidence arises when
one person is provided with
information by another in the
expectation that the information will
only be used or disclosed in
accordance with the wishes of the
confider. The duty is not absolute
• If there is an actionable breach of
confidence, the party affected must
have the right to take action though
the courts.
Access to Information:Jamaica
Actionable Breach of
Confidence
• This duty will only arise based on the
circumstances under which information was
provided to the authority and second based
on the nature of the information. This may be
done by contract or may be implicit from the
circumstances. An authority cannot contract
out their right to provide information under
the Act.
• The courts have applied a public interest test
to determine whether a duty to keep
information in confidence may be
outweighed by the public interest in
disclosure e.g. information concerning
misconduct, illegality or gross immorality
Access to Information:Jamaica
Information given in confidence
• Bacon International Inc. v. Department of
Agriculture and Agri-Food Canada
[2002] A.C.F. No.776 (QL) (F.C.T.D.)
• This is a case in which an application was
made for judicial review by a third party
following the Governments decision to disclose
a record. The applicants requested nondisclosure based on the fact the information was
provided in confidence.
• The applicants ran a slaughterhouse and meat
processing plant in Quebec. The Government
conducts inspections and gives the facilities
overall ratings in carrying out its mandate of
protecting the public in the food industry.
Access to Information:Jamaica
Information given in confidence
• The Government received a request for
access to information to obtain the rating
given by the Department to all facilities
specializing in slaughtering and meat
processing in Quebec and informed the
owners of the factories about the request
for information and invited them to send
their written comments with respect to the
reasons why the record should not be
disclosed.
• The applicant parties all argued that the
information was given in confidence and
that if the information was revealed it
would result in a financial loss. The
Government decided to disclose it.
Access to Information:Jamaica
Information given in confidence
• The Court ordered that the records be
disclosed and decided that when a third
party opposed the disclosure of the
information they must prove, according to
the balance of probabilities, that the
requested information should not be
disclosed.
• The Judge confirmed that the third party
claiming the exception provided by the Act
must prove that the record:
• is confidential in the objective sense of
this expression; and
• That the information was consistently
treated in a confidential manner by the
third party.
Access to Information:Jamaica
Information given in confidence
• The Court decided that the record for
which the Companies are trying to
obtain an exemption to disclosure
contains a rating for facilities issued by
the Government in carrying out its
mandate of protecting the public in the
food industry.
• The Court stated that the companies
must submit evidence demonstrating to
the Court how and why the disclosure
would probably cause the alleged harm
and must demonstrate a probability of
harm
Access to Information:Jamaica
Commercial Information
• S.20ATI Act
• (1) an official document is exempt if
(b) it contains information concerning
the commercial interests of any
person or organization including a
public authority and the disclosure of
that information would prejudice
those interests
Access to Information:Jamaica
Commercial Information
• USA Exemption 4 Permits an agency to withhold
“commercial or financial information that was
obtained from a person and is privileged or
confidential. Information is considered confidential if
it is likely to cause substantial harm to the
competitive position of the person from whom the
information was obtained.
• A citizen made a FOIA request to the Food and Drug
Administration for all documents concerning clinical
studies for all prescription drugs which had a
discontinuance because of death or serious injury of
patients for 1990-1993
Access to Information:Jamaica
Commercial Information
• The appellant argued that the information should be
released because it prevent other drug companies
from making the same mistake and avoid risk to
human health.
• The Court found that the FOIA was enacted to
ensure the public can learn directly about the
workings of Government and that it is not open to
the public citizen to bolster the case for disclosure
by claiming an additional public benefit in that it
would prevent risky human trials.They found the
data on the anti fungal drug if released could be
used to create a competitive product.
Access to Information:Jamaica
Commercial Information
• They found that if disclosure would provide
competitors with valuable insights into operational
strengths and weaknesses of a company while they
hold their cards close to their chests then this falls
within the exemption.
• The court then found that conclusory and
generalized allegations of substantial competitive
harm cannot support an agency’s decision to
withhold requested documents.
• Finally in releasing some of the documents and
exempting some the court found that an agency
cannot justify withholding an entire document
simply by showing that it contains some exempt
material.
Access to Information:Jamaica
"Secrecy has its place, but
governments are always tempted to
overuse the 'secret' stamp. When
that happens, it can come at the
cost of the public's stake in such
other values as safety or clean air
and water."
Sens. Patrick Leahy and Carl Levin,
Restore America's Freedom of
Information, 2003