Editorial | Bolster right to know

Anyone concerned about transparency in government will welcome Dana Morris Dixon’s pledge that the Holness administration won’t use the Data Protection Act (DPA) to stifle the public’s legitimate access to government information.

But, while there is no known cause to question Ms Morris Dixon’s personal commitment to abide by that undertaking, we are not inclined to take her merely at her word. And n0r should anyone else.

It is not about Dr Morris Dixon. There is always someone, somewhere in the institution of government looking to hide something.

That is why Dr Morris Dixon, the minister with responsibility for digital transformation, should ensure the guardrails in the DPA, or in any other law, protecting transparency are clarified and strengthened. Citizens’ right to know what their government gets up to must be put beyond doubt.

The DPA (it came into force last December after a three-year transitional period passed) is aimed at protecting the personal information, or in the language of the law, data, that individuals share with firms and institutions – including those of the government – with which they transact business.

So, an organisation that controls an individual’s private information is now under a legal obligation to manage that information with care and respect for the person’s privacy. They can’t, for example, seek to monetise the individual’s personal data without his or her consent.

SHROUD AGAINST TRANSPARENCY

But in the short period that the DPA has been in force at least one government institution, the powerful Tax Administration Jamaica (TAJ), has attempted to use the law as a shroud against transparency.

A report by the auditor general (AuG), made public in March, revealed that the TAJ, the collector of the government’s taxes, had, over three years, spent more than $400 million leasing two properties which it hadn’t occupied. The auditor general’s report didn’t identify the lessees.

This newspaper asked TAJ who they were. It refused to say, claiming “prohibitions to general disclosure pursuant to the provisions of the Data Protection Act”.

When asked to clarify its position, TAJ declined. It couldn’t “comment further at this time”, TAJ said.

Ironically, Norman Dunn, a government parliamentarian and junior minister, independently identified himself as one of the lessees.

Subsequently, the Office of the Information Commission (OIC), the regulator of the DPA, publicly declared that the Act didn’t prevent TAJ from providing the requested information. In the face of that contradiction, the tax agency said it was seeking guidance from the information commissioner on the matter. Nearly a month later, the TAJ hasn’t said what further guidance it had requested or received.

In the Senate on Friday, Peter Bunting, the leader of Opposition business in that chamber, raised the matter of TAJ’s behaviour with Minister Morris Dixon. The Office of the Information Commissioner, she responded, “remains in contact with TAJ on that particular matter”.

Quite a long engagement!

But, Dr Morris Dixon also said, “The Data Protection Act was never envisioned to be a law that would preclude the public from getting legitimate information that has been requested from the government and we will not use it as such.

“There is a right to understanding what the government is doing and so those requests that are coming in, the information will be provided, and where there is doubt as to whether the data protection rules preclude from doing that, the OIC will opine.”

WITHHOLD DATA

Indeed, law contemplates that a data-holder could – in the context of an individual exerting his right of access to information held on his or herself – withhold that data if it contains information about another party that, if disclosed, could cause that party “substantial damage or distress” to that person. However, there is the option to ask the potentially affected party for their consent to release the information.

There is no indication that the TAJ requested of Dr Dunn, or the unidentified lessee, if they objected to release their names.

In any event Section 30 (8) (iii) of the DPA allows the disclosure of information if it is “justifiable in the public interest”. There can be hardly anything that is more in the public interest than taxpayers knowing how their money is being spent, and with whom. And it was hardly expected that the DPA would be deployed in the interest of government secrecy.

Therefore, Dr Morris Dixon should prevail upon Prime Minister Andrew Holness, from whose office she works, to cause the DPA to be amended to clarify, and place beyond doubt, that government contracts and other government dealings, except in the most exceptional circumstances, can’t be exempt from public disclosure on the basis of protecting the other parties’ private information.

Additionally, as this newspaper previously suggested, the information minister, Robert Morgan, should be robustly advocating for the primacy of the public’s right to information about their government, as provided for in the Access to Inform Act (ATI). In fact, Mr Morgan should aggressively promote the expansion of those rights as they exist under the ATI, as well as for urgent responses from government agencies when citizens seek to exercise these rights.