Tuesday 25 February, 2020

Government revises proposed FOIA changes after public outcry

Government has revised proposed changes regarding the Freedom of Information Act (FOIA) following an outcry by NGOs and the Opposition.

The changes were made after NGOs and the Opposition objected to suggestions to revise Clause 7 of the Miscellaneous Provisions (Tax Amnesty, Pensions, Freedom of Information, National Insurance, Central Bank and Non-Profit Organisations (NPO) Bill, 2019, which proposed to extend the period within which a public authority is required to inform an applicant of its decision in relation to a request for information from 30 to 90 days.

In a media briefing on June 11, Attorney General Faris Al-Rawi said he accepts that he may have misunderstood the effect on the public and that government should have provided information on the amendments.

“I misunderstood the effect that this would have because perhaps I was too close to the numbers. When I see…less than one percent of refusals on average and then I noticed the severity of costs, perhaps I underestimated that the State would easily have persuaded Parliament…once this data was put forward.”

“We propose to take a two-week extension beyond the 30 days, allow the Attorney General 30 days to review, but the person who applies is put into an active state of waiting…while he Attorney General has a second view of that matter.”

“We accept the public recommendations coming from public society. We’re in active consideration of the issue.”

“We have said let’s go for 45 days, having heard what the population has had to say,” he said.

He said it’s also been suggested that the Attorney General’s office becomes involved as soon as a public authority denies a request for information.

“When the public authority tells someone ‘I’m not going to give you access, or I’m going to delay access, at that point…let the Attorney General be told as well, at the same time. We’re asking the Attorney General to conduct a review of that matter within 30 days from that date.”

“So your furthest outside date is effectively 35 days beyond the 45 days,” he said.

Following news of the amendment, organisations objected on the grounds that applicants filing for judicial review must take action before the expiration of 90 days from the date of the decision. As a result, requests for judicial review might be jeopardised.

Al-Rawi: Attorneys ‘milking’ the State through FOIA

Al-Rawi also accused attorneys of ‘milking’ the State, using loopholes in the law, noting a jump in the number of cases which were sent for judicial review even though the requested information was handed over to the applicants.

He said according to unconfirmed statistics, the number of requests leading to judicial review matters jumped from 0.8 percent in 2014 to 18.6 percent in 2015 and 20.8 percent in 2016.

“For the period January 2018 to June 2019…we noticed an industry had developed in particular amongst UNC lawyers, where the state was being milked, fleeced, massive amounts of money for Freedom of Information requests.”

“In particular, what this scheme involved is finding judicial review applications immediately upon the expiry of time…and then the attorneys at law, in withdrawing the judicial review applications, demand costs.”

Al-Rawi referred to a matter involving Darryl Heeralal v the Ministry of Finance where a total of $400,000 was paid as a result.

“We’re averaging about $400,000 for two judicial review matters where the state actually handed over the information.”

“This is to be balanced against the fact that there is exploitation, lawfully permitted, which results in costs coming against the state. The judicial review applications, two matters where the documents were handed over, cost taxpayers roughly half a million dollars,” he said.

He also referred to a matter involving Singh v the Public Service Commission, where a request was filed on January 27, 2016, and after some of the information was handed over, a request for judicial review was filed.

An appeal was submitted regarding an award of $7,500 in costs, which was taken all the way to the Privy Council.

“I’ve given you examples where the cost of the candles considerably outweighs the cost of the funeral. The baby is being thrown away with the proverbial bathwater,” he said.

“If we were to centralise the AG’s office in considering denials in Freedom of Information matters then the state potentially has a fighting chance to save costs,” he said.

“If the State had a little bit more time to consider requests and…review the refusals, chances are that you can save the taxpayers’ dollars,” he said.

The Bill will be debated in Parliament on June 14, 2019.

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