Do we need a Freedom of Information Act?

The introduction of a Freedom of Information (FOI) Act in Mauritius is one of the recommendations made by Geoffrey Robertson QC to the Prime Minister in his preliminary report on media law and ethics reform. Such legislation would create a right - for the press and the general public - to access information held by public officials, and a corresponding duty on the officials to disclose the sought information.  Given the far-reaching nature of this proposed legislation, it is understandable that there would be serious reservations regarding its introduction.
It may be argued, for instance, that important information has already been made available to the public, in the form of minutes of parliamentary proceedings, published reports, etc. However, if this was truly sufficient, why would various countries - such as the UK, the US, France, India, South Africa, among others - have enacted FOI laws? One could assume that they too would have been disclosing important information to the public in a similar way... FOI laws would have developed, then, from understanding that members of the public may have additional questions about the government that they have voted into power, about the way in which their taxes are being utilised, and other issues that affect the exercise of their rights.
Admittedly, there are no prohibitions on asking such questions in Mauritius. But these questions would most likely remain unanswered - for reasons ranging from inconvenience to fraudulence - if there is no legal ground for compelling public officials to provide answers. FOI statutes in countries such as India for example, provide a time-frame within which, either the information must be furnished, or written reasons should be given explaining why the information may not be disclosed.  The fact that the FOI Act would create a right to information and a duty to disclose information is central here.
An illustration of this would be the parliamentary expenses scandal uncovered in the UK using their FOI Act in 2009. Information regarding the misuse of taxpayers’ money would hardly have been made accessible if it were not for the Act. The uproar following the revelations led to several MPs resigning or being fired, as well as to the reimbursement of the expenses incurred on their behalf.

An understandable concern with FOI laws is that it may not be advisable or even necessary, for certain kinds of information to be freely disclosed to the public. However, no FOI legislation in any other country creates a duty to disclose every kind of information sought by applicants. Some information, such as that which relates to national security, does not fall under the ambit of information that needs to be disclosed. In addition, public officials may refuse to give the information if they are able to justify this. While one would not want the FOI Act in Mauritius - if/when it is introduced - to be so restrictive as to be wholly inefficient,   it is important to appreciate that the FOI Act would not create an absolute right to information.
Finally, it is true, as pointed out by the Prime Minister, that caution must be exercised when attempting to replicate the laws of other jurisdictions in one’s own country. Reference has been made to a statement made by Tony Blair in his memoir that he was a “naive, foolish, irresponsible nincompoop” for having introduced the FOI Act in the UK.
But this does not be lessen the importance of, and need for a FOI Act. We must understand that Blair’s reasons for his statement were that the Act was being used mostly by journalists as a “weapon,” and the fact that the Act affected the confidentiality of discussions among government officials. As regards the latter concern, caution would dictate that the Act be drafted with due care such that confidentiality - where reasonably required - is not unduly compromised. This forms part of Robertson’s recommendations in his report.
And as far as the apprehension that FOI Act would be used as a “weapon” is concerned , one wonders what the public or the press would attack if there is nothing to attack in the first place. When the MPs’ abuses of public money were uncovered, surely it was not the FOI Act itself that was wrong; what was wrong, was what the Act caused to be revealed.
The FOI Act may be invasive, it may be cumbersome to implement, but as Roberson writes in his report, “putting both the interests of politicians and of the press aside, when the interests of the public are considered, it is clear that in a democracy they are entitled to know certain facts and information about what the government is planning to do.” The public interest that the FOI Act would serve cannot be overlooked. Recognising the right to know would empower people to make informed choices, to understand and influence government’s decisions in a meaningful manner, and to keep government accountable for the power which, after all, has been bestowed upon it by the people.  It also mitigates one of the major shortcomings of parliamentary democracy where once MPs get elected to decide/act on behalf of the electorate, the latter become nothing more than passive/helpless onlookers.


Commentaires

Do we need oxygen?

Effectiveness of the Freedom of Information Act.
FOI Act in the UK./ Sir Alan Beith- committee chairman Commons justice select committee: said the legislation had enhanced Britain's democratic system and made public bodies more open, accountable and transparent: "It has been a success and we do not wish to diminish its intended scope or its effectiveness”. The report- Retired Cabinet Secretary Lord O'Donnell told the MPs that ministers and officials "are going to find ways around it, things are not going to be written down" and the cost of ministers' mobile phone bills will rise. The report also called for higher fines for the destruction of information, along with changes to protect universities from having to disclose research before the paper has been published. Ministers and officials "are going to find ways around it, things are not going to be written down" and the cost of ministers' mobile phone bills will rise.Don't forget that even if things are written down they can conveniently be lost like Mr Blair's expense records.