Freedom Of Information Act

- This is another essential building block of real transparency and accountability.

- The legislation will be retrospective so not only will Gibraltarians be able to find out how future governments behave but also how past administrations have acted on their behalf.

Last week the GSLP Liberal Opposition presented a policy statement on implementing a Ministerial Code should the parties become the government after the next general election.  This was the first part of a jigsaw of policies to bring badly needed Open Government and Transparency to Gibraltar.

There will be other important policies announced over the coming weeks but today the Opposition states its commitment on taking office to creating a Freedom of Information Act to bring good governance to Gibraltar.

Leader of the Opposition Fabian Picardo explained: “Numerous countries and territories around the world have now introduced Freedom of Information legislation aimed at guaranteeing access to data held by the State. It establishes a “right-to-know” legal process by which requests may be made for government-held information, to be received freely or at minimal cost, barring standard accepted exceptions. It is time for Gibraltar to remove the veil of secrecy that surrounds its decision making process and open up the workings of its government to the people. Transparency is the key way to detect and deter corruption in our system of governance. A Freedom of Transparency Act would give us true transparency.”

Gibraltar usually follows the lead of the United Kingdom in enacting such legislation.

The Labour Party included a commitment to introduce a Freedom of Information Act in its 1997 manifesto. The Act was eventually passed in 2000 and fully came in to force in 2005. The UK Act covers England, Wales and Northern Ireland. It has come in for criticism from some sauces because it is said: the range of exemptions is wider than for any other freedom of information acts existing in a democratic state; the obligations to establish publication schemes were diluted meaning that there is no duty to publish information of any specified type, and there is a ministerial veto which undermines the Act. None of these would apply in Gibraltar.  Others, including UK Ministers whose information is subject to the code, have argued that the UK Act is too wide.  So there has been criticism from both ends of the spectrum.

Fabian Picardo pointed out: “The 2000 Act does not extend to public bodies in the overseas territories or crown dependencies. It is a big Act for big government covering public authorities, including Parliament, Government Departments and local authorities, health trusts, doctors’ surgeries, publicly funded museums and thousands of other organisations in England, Northern Ireland and Wales. Clearly this is not an Act for Gibraltar however there are key provisions in Freedom of Information Acts that would carry across to our jurisdiction.”

A Freedom of Information Act for Gibraltar would include:

- A general right of access to government records subject to exemptions – a free standing right to information which the ordinary citizen makes in his or her own name.

- The burden of proof will be on the government department to justify withholding information. In most cases, where information is exempted from disclosure there will be a duty on public authorities to disclose where, in the view of the public authority, the public interest in disclosure outweighs the public interest in maintaining the exemption in question.

- Strict time limits in which the information must be provided.

- An appeals process through an independent commissioner whose role it would be to oversee the administration of the act.

Obviously, the counter point is the right of citizens to protection of their personal data; which will clearly mean that data on individuals held by governments will not be subject to Freedom of Information requests (other than by the individual himself).

Fabian Picardo said: “It is the GSLP Liberal Opposition’s intention to introduce a Freedom of Information Act, a carefully thought through legislation, that is specifically drawn up to meet the needs of a community of 30,000 people. As part of the process in developing this policy we have contacted The Policy Council of the Government of the States of Guernsey. Their parliament is concerned with the same issues that face us – the creating of a Freedom of Information Act for a small community. Currently a report commissioned by the Parliament of the States of Guernsey is about to be considered by the Policy Council and once it has been published in September its provisions will be studied by us to see if they can be adapted to Gibraltar’s needs. We are also in contact with an expert in drawing up Freedom of Information Acts for small jurisdictions who has worked for the UK’s Ministry of Justice dealing with relations with Crown Dependencies later dealing with Freedom of Information strategy.

“The GSLP Liberal Coalition has consulted with Maurice Frankel the director of the UK Campaign for Freedom of Information and a leading international authority on this issue. He was a member of the Lord Chancellor’s Advisory Group on Implementation of the Freedom of Information Act and of the Commonwealth Group of Experts whose Freedom of Information Principles were adopted by Commonwealth Law Ministers in 1999. He has been very instrumental in pointing us to various smaller jurisdictions whose Freedom of Information Acts have been based on larger ones elsewhere such as the Cayman Islands. These we will be studying intensely in the run up to the election

“According to the Campaign for Freedom of Information there are now 95 countries around the world which have their own acts. If we are to bring open and transparent government to Gibraltar then a Freedom of Information Act must be introduced here as a matter of urgency.

“The legislation will be retrospective, so not only will Gibraltarians be able to find out how future governments behave but also how past administrations have acted on their behalf. Indeed from the moment a GSLP Liberal government is elected we will be releasing information that is releasable.

“The US Justice Department summed up that nation’s Freedom of Information Act as being ‘to check against corruption and to hold the governors accountable to the governed’.  There is therefore no reason why Gibraltar should not benefit from such legislation.”

ALL CITIZENS HAVE THE RIGHT TO DISAGREE WITH GOVERNMENT!

Following reports in Panorama that a Civil Servant has been told to remove
her comments from a Facebook page on local politics, the Leader of the
GSLP Liberal Opposition, Fabian Picardo, reminds people that free speech is
the right of all citizens and must be respected and upheld, in particular by
Government.

Fabian Picardo stated: “It is accepted that Civil Servants should not make
public statements about their own departments. However it is a basic human
right that they should be able to speak freely on any other issues be it on
Facebook or other media outside of working hours. The new types of “social
media” which are becoming increasingly popular offer opportunities for
expression which have not been so accessible before; and they also create
new issues that we as a society have to understand and address.
“If the GSLP Liberals form the next Government we will ensure that no-one in
Gibraltar is afraid to speak their mind. As the problem of perceived censorship
is seemingly more acute in our Civil Service we shall – in close consultation
with Civil Servants and their representatives – establish and implement a
specific protocol for guidance on the exercise of the freedom of expression
within the public sector that will explicitly set out that public employees are
free to exercise their right of free speech on general issues whilst honouring
the accepted norm that they do not speak about issues relevant to the work
done by their departments. If there is already a clear code on this we shall
ensure it is adhered to and that no-one within the Civil Service feels that they
are being restricted beyond the terms of any such agreed guidelines.

“In the GSD’s last manifesto under “Citizens Rights – progress so far” that
party stated: ‘civil service given much greater freedom of political activity and
public comment’.

“The recent events reflected in the Panorama reports suggest that there are
still clearly problems manifesting themselves in the way that Civil Servants
rights to free speech is being curtailed.

“Indeed, more generally, there are instances of people even outside the Civil
Service telling the Opposition that they feel unable to make comments which
are unfavourable to the GSD for fear of retribution. Not only do I believe that
Civil Servants should have their rights of free speech protected (subject to not
making public statements about their own departments) but that we have to
specifically as a society understand, protect and promote the right of people to
disagree with the government and the Chief Minister of the day. That is the
beauty of democracy. It is true that the existence of such “fears” has been
talked about before, when the GSLP were first in Government and even
before then.

I therefore believe that what Government needs to do is to be the explicit
promoter of the freedom of people to express themselves without fear of
retribution from the government or any of its agencies. If we don’t
nurture such rights and if the government is perceived as seeking to
curtail dissent rather than to encourage debate, we are moving
backwards and not forwards. Some people feel that their free speech in
Gibraltar is under attack, and we must respond to that by encouraging
free speech, so that people feel free to make their views felt on issues.”