Public Consultation for FOI

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Published 4th November 2005, 11:56am

The Freedom of Information Bill, which has been approved by Cabinet, was tabled as a discussion paper for public consultation in the Legislative Assembly, Friday 04 November.

This long-awaited bill, that seeks to give the public a right of access to official documents and sets out the conditions for that access, will be available on the government's website,www.gov.ky.

Persons requiring such documents do not have to provide any reason, and the bill's aim is to give effect to constitutional democracy, by ensuring government accountability, transparency, and public participation in national decision-making.

At the same time, it balances the right of access against obligations in the public's interest to preserve confidentiality of sensitive governmental, commercial or personal information.

The bill applies to organizations providing public services, but allows for exceptions, adaptations or modifications by Cabinet. The bill specifies as well that it does not apply to judicial functions of courts or holders of judicial offices, security or intelligence-gathering activities and services. Also exempt is such statutory body as Cabinet may specify by Order.

The applicable agencies would normally have 30 days to respond to a request by a member of the public, although that time can be extended for another 30 days, where there is reasonable cause for delay.

Access to Documents

The bill affects official documents up to 30 years old, although Cabinet can vary the timeframe to an earlier date.

Exceptions include documents protected under section 50 of the Monetary Authority Law; those relating to directors, officers and shareholders of a company exempted under Part VII or Part VIII of the Companies Law (2004 Revision); and other classes of information which Cabinet may specify.

Obligations of public authorities

Once the bill becomes law, every public authority must publish within 12 months, in the Official Gazette, a description of its subject area, a list of departments and agencies, the opening hours, title and business address of the principal officer, and a list of documents utilised by the agency in making decisions or recommendations. These statements must continue to be published in the Gazette at intervals of not less than 12 months.

These documents should include information relevant to any enactment or scheme administered by the authority, including manuals or other documents containing interpretations, rules, guidelines, practices or precedents. These must be made available to the public for inspection and for purchase.

In the case of exempt documents, principal officers may create a corresponding document, excluding only the exempt matter. Exemption of a document or part of it shall, however, not apply if it is 20 years or older. Cabinet could make this period shorter or longer.

The public can apply for documents by letter or email - but not by telephone.

Public authorities will be charged with assisting members of the public in identifying the non-exempt documents they require, and must acknowledge receipt of every application. Authorities are allowed 30 days to respond to requests. If a request has to be referred to another authority, it must be transferred within 14 days of receipt.

A public authority does not have to accede to requests that are "vexatious," repetitious, places unreasonable strain on resources, or if the information is already in the public domain.

An authority may grant access to a document in a form other than that requested by an applicant, where access may be detrimental to preservation of the document or be inappropriate. The bill provides for an authority to defer access in specified cases.

When a document containing exempted matter is requested, the authority may copy the document, deleting the exempted matter, but must thus advise the applicant.

A reasonable fee may be charged for these services, but the Governor in Cabinet may specify cases where the information shall be obtained free of charge.

Exemption of Documents

Documents may be exempt when disclosure might prejudice national security; violate confidentiality of information given by a foreign government or an international organization; endanger a person's safety; affect procedures of law enforcement agencies or government's ability to manage the economy; facilitate the escape of a person from detention or jeopardize prison security.

A document is also exempt in the case of legal professional privilege in which disclosure may be a breach of confidence, contempt of court, or infringement of parliamentary privilege.

A certificate would be issued declaring any exempted documents or part of them.

Nevertheless, the bill says a public authority, "shall grant access" to a document among this category of exempt documents if it is satisfied that disclosure would be in the public's interest.

This exemption rule does not apply to documents containing material of a purely factual nature, such as reports, studies, tests or surveys of a scientific or technical character.

Documents containing "trade secrets" are also exempt, as are those that may reveal information of a commercial value that may be diminished by disclosure or if a person's interests may be compromised.

Also exempt are documents which may, by disclosure, destroy, damage or interfere with conservation of historical, archaeological or anthropological resources, including any species of plant, animal life or living resource that may be endangered or rare. Again, an authority may grant access, if it is considered to be in the public's interest.

Affairs of individuals living or deceased are also protected if they involve "unreasonable" disclosures of a personal nature, except where the individuals concerned request access.

Protection of Rights

The bill also provides recourse for persons claiming that accessed information is incorrect, incomplete, out of date or misleading. Such persons can request, in writing, that the data be amended or have notes of explanation added. Where an authority may decide not to take the requested action, the applicant must be advised, where appropriate, to take steps necessary to support the claim. In either case, the authority must take reasonable steps to inform the applicant.

The bill provides for an appeals tribunal, and stipulates procedures for internal reviews of decisions.

The bill devotes a section on "measures to promote openness." These include promoting best practices on document maintenance, archival and disposal, receipt of requests from the public, and training officers for roles.

"Whistleblowers" are protected from repercussions related to having in good faith released information on wrongdoing.

The bill protects authorities from liability relative to defamation, breach of confidence and copyright.

Comments by members of the public should be submitted to the Cabinet Office, Glass House.