As someone who was closely involved with the introduction of FOI in the Cayman Islands, but now living in Anguilla, I read your editorial in last week’s newspaper (“Calls for Freedom of Information Act”, 19th June 2009) with great interest. While I fully applaud your stance, I have a few comments which I would like to share with you.

No one will disagree that the ongoing interaction of citizens and state in a modern democratic system, no matter how small, should not be a one way street. Accountability and transparency, as fundamental characteristics of democratic governance, rely heavily on the expectation that documentary evidence be created and kept, and that it be made accessible to citizens and the press. That is why FOI can only succeed if: (1) Public Sector information is fully and accurately created, and reliably maintained; and (2) the public has a general right to access this information. While your editorial addressed the legislative side of the latter, it is important to keep this full picture in mind. That is why I would like to raise the following points:

(1) FOI does not succeed in countries where the emphasis is too much on the legislative process, and where the practical meaning of the right and its implementation are neglected. Introducing FOI in a traditionally secretive administration involves a change of culture amongst all levels of public servants. This is arguably the tallest order which requires a sustained effort beyond the mere passing of a law itself. Accomplishing this change in Anguilla would require careful planning, targeted training and a broad awareness raising effort.

(2) FOI is only as good as the underlying record keeping practices - if the information isn't recorded and retained in the first place, or can’t be found, then the right is meaningless. How good are the record keeping practices in Anguilla’s Public Sector? Is information available to the right person at the right time? Who has the power to authorize the destruction of records and information? What guarantees are in place to ensure that records are created, managed and destroyed in a fair and impartial manner? Anguilla’s readiness for FOI will depend in large part on the answers to these questions.

(3) "Freedom of Information" itself is a bit of a misnomer since all FOI laws recognize a number of legitimate exceptions. For instance, information relating to law enforcement or international relations is usually not accessible to the public for a number of years. This is often misunderstood, which can lead to false promises and disappointment. Where should the balance lie between the public’s right to access and government’s legitimate need to protect certain types of information? Should the public interest override any or all exceptions? Should there be a right of appeal against decisions? What form should this take, and what powers should an independent appeal body have in Anguilla?

(4) One of the biggest problems is what to do with personal information. In its day to day operations government collects lots of personal data on citizens, clients, business partners, staff and visitors. What rules govern this information? Is it safely guarded? How should the right to access (FOI) be balanced against the need to protect personal privacy?

These issues are complicated, but they touch each and every one of us, and deserve our attention. The first step in addressing them would be the passing of a Public Records Act or the updating of Standing Orders, which would have the dual benefit of supporting the effectiveness of the Public Sector, and laying the necessary foundations for the introduction of FOI. In Cayman this effort was spearheaded by the National Archive, and the Records law was passed unanimously by the Legislative Assembly in 2007. Next, the Cayman government invited input from the public and civil society into the drafting of the FOI law. Once the law was (also unanimously) enacted, sufficient time was granted to prepare for its practical implementation in the Public Sector, and to inform the public of the details of the new right of access. The Cayman law came fully into force on January 1st, 2009 and early indications are that it is a great success, not least because of the careful preparations and inclusive consultation process.

This and other examples from abroad confirm that the writing of the law itself is the easy part. Getting it to work is another matter. When the time comes for Anguilla to prepare for FOI, I hope this lesson will not be forgotten.

Yours sincerely,

Jan Liebaers
Anguilla

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