Editorial | Morgan must take ownership of ATI reform

Now that Robert Morgan is full minister and has de facto charge of the information portfolio, he should drive hard for the implementation of the long-outstanding upgrades to the Access to Information (ATI) Act. He mustn’t accept that Parliament will not have the wherewithal to visit the matter until at least sometime in 2023. Experience tells us that without great energy behind the effort, the delay will be longer.

And there are good reasons why Mr Morgan, who is close to Prime Minister Andrew Holness, and works from the Office of the Prime Minister (OPM), should make the law’s upgrade a priority. If nothing else, it is good politics – something that would win the Government votes. It certainly wouldn’t lose any.

Put that another way, Jamaicans overwhelmingly believe their government is corrupt. They have little confidence in the island’s public officials and institutions of the State. Along with honest government, the best antidote for this cynicism is transparency. Both, really, are flip sides of the same proverbial coin. Which is why Mr Morgan should be keen to fix issues relating to the ATI law, which were recently highlighted by this newspaper.

For example, it took more than half a decade for Jamaicans for Justice (JFJ), the human rights organisation, to prise out of government agencies background documents on the 2009 Armadale fire, to which the public always had a right. Nine girls, so-called wards of the State, died in that 2009 blaze. An ATI appeals tribunal last month finally confirmed JFJ’s entitlement to the information and ordered that the documents be released without deletions or redactions.

DELIBERATELY LETHARGIC

While that was a positive development, parallel with it were the instances of frustratingly slow, if not deliberately lethargic, responses often faced by JFJ, and other groups, to their requests for information.

There is, for instance, the ongoing bid by anti-corruption campaigners, Jamaica Accountability Metre Portal (JAMP), for information on contracts, worth nearly J$1 billion, awarded by the Kingston and St Andrew Municipal Corporation (KSAMC) and the Department of Correctional Services (DCS). These were flagged last year by the auditor general.

The issue with the KSAMC, the capital’s local government, is 630 contracts it awarded for roadworks over six fiscal years, up to 2019/2020. The jobs were valued, it is said, at J$778 million. Five hundred and sixty-six, or 89 per cent, were awarded on the basis of direct or emergency procurement. They bypassed competitive bidding.

What caught the attention of the auditor general at the DCS was the J$185 million it spent during 2016/17 and 2017/18, for which the correctional services could provide the auditor general neither procurement documents nor minutes of meetings at which the decisions are taken.

JAMP wanted to know whether the DCS or the KSAMC had implemented the auditor general’s recommendations on how they should protect taxpayers’ money. More than six months ago, JAMP filed ATI requests for the information. But at the time of this newspaper’s first reporting on the matter on February 6, after more than 240 days, JAMP hadn’t received a response.

By law, ATI requests must be responded to within 30 days, but can be extended for another 30 days, if there is “reasonable cause” for the extension. Some government agencies have seemingly perfected the art of elasticising those 30 or 60 days.

At the time of The Gleaner’s reporting, Robert Hill, the KSAMC’s CEO, said the corporation was “searching” its records, hoping to find the requests.

Between April 2019 and October 2020, JFJ filed 217 requests with government agencies. For 18 per cent of those (39) it received, JFJ said, “absolutely no response”. Another 38 per cent (82) were characterised as “unfulfilled” because the agencies didn’t provide the information within the stipulated period or claimed it wasn’t available. Forty-four per cent of the time the agencies met their obligation.

JAMP did better than JFJ. Seventy-three per cent of the 107 ATI requests it filed last year were fulfilled. That, however, means that more than a quarter (27 per cent) of its requests weren’t met.

NO READILY AVAILABLE DATA

Unfortunately, there is no readily available data on how the Government more broadly responds to information requests. The Access to Information Unit at the Office of the Prime Minister doesn’t, as a matter of course, provide this analysis. It should. Indeed, a parliamentary committee recommended it, and more, over a decade ago.

The ATI, which came into force in 2004, stipulates that it should be subject to periodic reviews, with the first to take place after two years. That happened. The second review was completed in 2011, with parliamentarians recommending significant adjustments to the act.

Perhaps the most substantive of these was for the ATI unit at the OPM to be transformed into a statutory body, providing robust oversight of the management ATI requests and perhaps acting as an appeal body. It would also send reports to Parliament, including data on the law’s operation. Significantly, too, the committee called for the repeal of the Official Secrets Act and its replacement by a law “that would include penalties for the release of information that would put the state at risk”.

Additionally, the 2011 committee recommended a more fulsome accounting of the process behind the refusal of ATI requests, including the applicant being informed of the “various channels within the entity” the request went, and the rank of the officers who took the final decision “without naming the individual”.

A decade is a long time for these recommendations, and others, to languish. Mr Morgan should get the Government going on them. They can’t be too busy for transparency.