Guernsey does not have a Freedom of Information Law (FoI). We have a Code of Practice for Public Information, which is voluntary. There is a supposed “presumption in favour of disclosure” rule. Experience suggests, however that this is not observed if the information requested would cause discomfort. The ranks close. A full Freedom of Information Law would prevent this happening by providing a defined right to information, subject to independent interpretation by a judge or Data Protection Commissioner (rather than by a non-independent official), and thereby capable of enforcement.
Excuses for not previously doing so have focussed on costs. Whilst “small government” and the minimisation of the costs of government, both those directly charged to citizens and those indirectly caused to them, is of course an important objective, it should not be used as an excuse for not doing what is undoubtedly right for the modern day, but which happens to be inconvenient to the establishment.
In fact, the ultimate cost of a Freedom of Information Law would likely be lower than the direct costs of its implementation and existence, because that existence would encourage better practice. We believe that previous deterrent scaremongering estimates of the costs of providing information transparency have been greatly overestimated for a small community such as Guernsey, but in any event, if the organisation is in fact operating cleanly, the costs will be reduced; it is merely a question of efficiency. We believe that FoI will pay for itself in practice, because the likelihood of public disclosures would result in more careful decision-making with consequent savings to the public purse, as well as discouraging the questionable use (whether through profligacy or doubtful propriety) of taxpayers’ monies. The real question is: in a modern climate, can Guernsey afford not to have such a Law?
Importantly, though, the system for providing FoI must be reasonably affordable for the applicant. The “free” availability of information is an illusion if the costs of obtaining that information are initially high, or prohibitive in the face of any resistance, and any system for implementing FoI must take account of this. There are methods of dealing with this, such as a sliding scale of fees & we might be well advised to examine Jersey law in this regard, and see how they do it.
We believe that an easy, effective and affordable route for accessing information must be developed and provided, particularly for the aggrieved. It is a vital tool for both the efficiency of a modern system of government, and for promoting the trust of citizens. The case for introducing such a Law going forward is therefore compelling.
A more difficult question is how far any such Law should have retrospective effect. It might reasonably be feared that unlimited retrospectivity could encourage an avalanche of requests, and expense out of all proportion to any practical benefit. It would be reasonable, therefore, for there to be some form of time limit. However, such limits must be sufficiently liberal or flexible so as to permit applications with regard to matters of continuing effect on the applicant, or which relate to issues of proper conduct in public office. But the correct scope of these qualifying requirements could, and should, in case of dispute, be decided on by the independent judgment of a court or Data Protection Commissioner, and not by an official, and in all cases there would be a presumption in favour of disclosure. It is worth noting that Jersey has implemented retrospective FoI, and that matters are administered by the Data Protection Commissioner.
Only that way will a Freedom of Information Law be able to fulfil its proper function; encouraging transparency and promoting confidence in government. What politician or official could conscientiously object to this?
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