Freedom of information: years behind and still dragging feet. By Nick Mann
GUERNSEY could be about to take its first tentative steps into an arena that other democracies have long since engaged with.
GUERNSEY could be about to take its first tentative steps into an arena that other democracies have long since engaged with.
Guaranteeing the public's right to access information held by government is seen by many as a cornerstone of a modern democracy – not having it makes a mockery of any of the island's claims to be maturing on this front.
It creates a level of public scrutiny and accountability that at its best should improve decision-making and the work of government and the services it offers.
But these steps are tentative – baby steps, if you like.
The Policy Council, with its plan for access to public information, appears to be trying hard to do something for nothing.
The question is, then, is that something better than nothing at all?
Let's be positive for now and say yes.
Some of this is because of the cultural change a policy should bring about.
There would be a presumption of disclosure rather than the attitude that still holds sway at the moment, which is not to trust the public with information.
Record management should improve so that information is at hand – although some of that rests on the successful implementation of the new SAP computer system that is struggling so much at the moment.
Experience elsewhere suggests that it is these steps a code can push through. Publication becomes proactive, the push rather than pull of information.
Jurisdictions tend to then move to legislation – the Isle of Man and Jersey have both operated codes since the 1990s and are now weighing up the costs of a law.
The Policy Council report makes a great play of the need to balance the right to access against the need for confidentiality.
It has a list of exemptions to publication that are modelled around those used elsewhere and then tweaked – deeper analysis is needed of those before anyone can give any kind of endorsement.
Some will fear the balance will be pushed too far the wrong way.
Some exemptions read like a carte blanche to say nothing and, used in the wrong way, could provide that.
But in the Isle of Man, the fact only five requests were refused last year is a hint that the balance is tipped to disclosure.
Now comes the tough part.
There is a fundamental deficiency in the Policy Council's approach to access to information – and it has been marked throughout all the consultation in getting this far.
The lack of independent oversight leaves the system open to abuse on the part of those who want to keep information hidden – the danger of the carte blanche exemptions referred to earlier.
What happens when a request is turned down?
It is not explicit in the report, and it should be, but the department or committee should provide an explanation – not just a curt 'it breaches section X'.
You then appeal initially to the department's chief officer or committee's principal officer.
No luck?
Well, it "may" go to the department's board – that may is important because it looks like it will be for the chief officer, who has already turned it down, to decide whether it goes on or not. And who would advise the board? The same civil servants who turned it down.
If the battle continues then the department 'may' refer it to the Policy Council.
So it all remains in-house and with that lies the danger of damaging faith in the code before it even gets off the ground.
It could quickly become tainted.
The Isle of Man and Jersey, both have independent oversight.
The initial process is the same – departments are asked to reconsider their decision – but the appeal would then go to a commissioner in the Isle of Man or a complaints board in Jersey.
The Jersey complaints board has voluntary members.
Guernsey has a history of using three-person independent panels to adjudicate – for example with the planning appeals panel.
That planning appeals system has done much to demystify the process – and push improvements in planning policy by exposing decisions that were not properly justified.
The information policy will be toothless without a similar system in place – and, after all, what is it the States is afraid of here?
Each term, States members come in on a campaign during which openness and transparency are promised.
Guernsey is 20 years behind the curve on access to information and now we have something on the table, it comes with some pointed deficiencies.
But a tentative step is a step nonetheless.
And there is still the chance to give it the teeth it deserves.
With access to information in the public consciousness, with promises already given on the campaign trail that deputies need to live up to, any shortcomings will be quickly exposed.
