ARTICLE 19
GLOBAL CAMPAIGN FOR FREE EXPRESSION
The ‘mission statement’ behind the draft Policy, quoted on page 2, is:
To provide a framework for the implementation of the Freedom of Information Bill and
review of existing laws, regulations and procedures.
However, paragraph 1.4 of the draft Policy states that, as part of its implementation, a
Freedom of Information Bill is to be published. This leads to the important question: is the
purpose of the draft policy to implement a Bill, or is a Bill needed to implement the draft
Policy, and does it serve as a consultation document for that?
Ordinarily, a policy for the implementation of legislation is published only after the relevant
legislation has been adopted, or as a package when the legislation is first published. Neither is
the case here. Although a first government bill on access to information was published as long
ago as 2005, this was never tabled in Parliament and its current status is uncertain. The private
members bill on freedom of information referred to above has not been discussed in
Parliament either. As a result, there is currently no legislation to implement, whether current
or under consideration, and this raises confusion regarding the question what the Policy is
aiming at in terms of implementation. This confusion is reflected in the draft Policy itself. In
many places, it reads more like a consultation document than an implementation policy. For
example, the entire section regarding the establishment and functioning of the Information
Commissioner discusses what the Act will do, not how it will be implemented. Similarly,
Section 3.14, on exceptions and protected information, gives detail on policy considerations
behind the legislation – not on implementation.
However, other paragraphs do appear to aim to implement legislation and refer to the
Freedom of Information Act as though it has already been adopted. For example, Paragraph
3.5.1 refers to the Freedom of Information Act as a relevant consideration for public
authorities when developing an information policy framework, and Paragraph 3.5.2 states a
number of minimum standards for such information policy frameworks. Yet these paragraphs
raise the question how the government can predict to get legislation through parliament to
provide for all of these in exactly the same detail as is stated in the draft Policy.
We are concerned that the overall result is that, in its current form, the draft Policy is poorly
suited either for the goal of consulting on or preparing the way for a freedom of information
bill, or for implementing freedom of information legislation. If the purpose of the draft Policy
is to start a lengthy consultation process on legislation, that would be cause for significant
concern. Such consultation would cause further delay to the realisation of the public’s right to
know without serving a real purpose: the government consulted around a draft bill in 2005,
and in the two years since should have gathered sufficient responses and feedback to allow it
to move ahead and either declare its support for the current private members initiative, or to
have brought a bill of its own.
We would therefore recommend that effective freedom of information legislation is
introduced in parliament as a matter of urgency. The government should either declare its
support for the private members bill that has been tabled, or urgently introduce a legislative
proposal of its own, and the draft Policy should be reworked to provide a realistic strategy for
the implementation of that legislation. We would be happy to provide technical support in this
process as it progresses.
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