Access to Information:

1. Access to Information: Access to Information: Jamaica Procedural and Substantive Issues: A selection of decided , FOI and ATI cases

2. "When government begins closing doors, it selectively controls information rightfully belonging to the people." Judge Damon Keith, U.S. Sixth Circuit Court of Appeals

3. ATI Laws around the World • Over 50 countries now have ATI laws • Older democracies – United States, Canada and Australia, Ireland • Central and Eastern Europe- Bulgaria Hungry, Czech Republic • Americas- Mexico, Columbia • East- Thailand, Japan, Philippines • Europe- Sweden , Ireland, United Kingdom • Caribbean- Trinidad, Belize, Jamaica, Bermuda

4. Enforcement models • There is no one approach used around the world in the hearing or review of access to information decisions. • United States and South Africa, aggrieved information requesters must appeal directly to the Federal Court. • Mexico, Australia, and the US State of Connecticut, the law provides for an intermediary body with the power to hear complaints and order the release of information;

5. Enforcement models • Sweden and Hungary, the authority of the intermediary body is limited to providing recommendations only. • Canada has an information commissioner who if their decision is not followed may take matters to Court for judicial review. • The United Kingdom only passed a law this year 2005 • The international trend is to establish an intermediary body, like Jamaica’s Appeals Tribunal, to review agency decisions with the power to order the public authority to comply with its findings and decisions.

6. How to find case law on the worldwide web • USA Freedom of Information Act 1966 • www.citizen.org/litigation/ • Canada Access to Information Act • http://www.infosource.gc.ca/bulletin/2003/bulletin07_e.asp • Australian Freedom of Information Act 1982 • www.austlii.edu.au/au/cases/cth/aat/ • Ireland • http://www.oic.gov.ie/djudge.htm

7. Access to Information : What does it mean? • “Exempting documents should be the exception rather than the rule”. • Bacon International Inc. v. Department of Agriculture and Agri‑Food CanadaReference: • [2002] A.C.F. No.776 (QL) (F.C.T.D.)

8. Access to Information : What does it mean? • “It is unacceptable, in a democratic society, that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.” • Commonwealth of Australia v John Fairfax and Sons Ltd and Others (1980) 32 ALR 485, Mr Justice Mason

9. Relevance of ATI /FOIA case law from other jurisdictions • The decision of a court of another jurisdiction only acts as persuasive authority. It is NON- BINDING . However it may be PERSUASIVE. The degree of persuasiveness is dependent upon various factors, including,:- • First, the nature of the other jurisdiction. • Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. • Thirdly the date of the precedent case, • Fourthly, the judge's reputation may affect the degree of persuasiveness of the authority

10. Relevance of ATI /FOIA case law from other jurisdictions Where a lawyer cannot find a binding precedent, he or she may rely on a non-binding precedent from another jurisdiction. While not obliged to do so, the court may be impressed with or be persuaded by the reasoning and be prepared to adopt the rule established by the foreign case.

11. Relevance of ATI /FOIA case law from other jurisdictions Usually the court will establish whether:- • The facts, statute and judgment are relevant and applicable in Jamaica • The legal system is based on common law principles, a colonial heritage from the United Kingdom. • Specific Similar tribunals /Information Commissioners have utilized this Approach

12. Relevance of ATI /FOIA case law from other jurisdictions • Australia: -In Harris v Australian Broadcasting Corporation and Others (1984) 51 ALR 581, at 587, the Full Court of the Federal Court of Australia has taken into consideration Us freedom of Information Act decisions. In this case they decided that the FOI Act must be interpreted according to its own terms. However guidance, as the Court found in Harris's case, may be had from the US legislation.

13. Relevance of ATI /FOIA case law from other jurisdictions • The only way in which these judgments can be utilized by attorneys is if they are published and easily accessible. • Ireland:-The Information Commissioner makes legally binding decisions arising from reviews conducted under section 34 of the Freedom of Information Acts. • It publishes some of these decision and also those which are of general interest or contain points of interpretation or of application of provisions of the FOI Acts which warrant broader release.These matters may be brought before the courts on APPEAL. Such Judgments are also published .

14. Substantive and Procedural Issues Procedural and Substantive • Information already in the Public Domain • Inappropriate Application of Exemptions • Deliberative Process and Public Interest Test • Cabinet Documents and Exclusions • Legal Privilege and Personal Privacy • Breach of Confidence • Commercial Information • Deletion of Exempt Matter/Severance

15. Information already in the public domain • S.6 ATI – where an official document is open to access by the public pursuant to any other enactment as part of a public register or otherwise-access to that document shall be obtained in accordance with the provisions of that enactment or those procedures

16. Information already in the public domain • Canadian National Railway Company v. Attorney General of Canada [2002] F.C.J. No. 1283 (QL) (F.C.T.D.) • Every year, a list of the non-rail assets was send by a privatized railway to Transport Canada by an agreement. • Transport Canada received a request to disclose the list for 1996 and 1997, but refused the request at the Railway companies request based on information given in confidence. The documents contain the following information: name of the purchaser, the municipality of the property, its approximate surface area, the selling price, the date of sale, the costs of the sale and the net revenue of the sale.

17. Information already in the public domain • The parties agreed that the costs associated with the sale and the net revenue of the sale must not be disclosed. • The person requesting access filed a complaint regarding the decision not to disclose the information. • Transport Canada decided it would disclose the contents of this list for the years in question. The reasons for this decision included the fact that the information requested was accessible to the public because it was registered at the registry offices of various provinces.

18. Information already in the public domain • Pelletier J. noted that confidentiality cannot not be raised in a case where the public has access to information or when the information can be obtained from sources to which the public has access • The Court then examined the issue whether the Act only requires that the public have access to sources containing the information in question, or if it is necessary that the public actually be able to have access to this information. The applicant alleges that, although the information was registered at registry offices, it would be impossible to access this information by only knowing the purchaser's name or that the applicant was the vendor. • In the Court's view, any ambiguity with respect to this question must be resolved in favour of disclosure and the files were to be disclosed.

19. Substantive Issues : -Deliberative Process Exemption and PI • Deliberative Process s.19 ATI- Exempt if contains • (a) opinions, advice or recommendations prepared for • (b) a record of consultations or deliberations arising in the course of proceedings of Cabinet or committee. Excludes document of a factual nature, studies, tests, surveys of a scientific or technical nature • This exemption could include: • Advice to Ministers by civil servants, • Discussions between Ministers or between Ministers and their official advisors • Advice or recommendations on policy decisions • Expert advise and studies • THE PUBLIC INTEREST TEST MUST BE APPLIED s.19(3)

20. Substantive Issues : -Deliberative Process Exemption and PI • The relevant provisions of the Australian Act is s.36 of the FOI Act • : "36. (1) a document is an exempt document if it is a document the disclosure of which under this Act: • (a) would disclose matter in the nature of, or relating to, opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation that has taken place, in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or Minister, or of the Government of the Commonwealth; and • (b) would be contrary to the public interest."  “ • (5) This section does not apply to a document by reason only of purely factual material contained in the document."

21. Substantive Issues : -Deliberative Process Exemption • Australia: Freedom of Information Act 1982 • THOMAS LINCOLN CHAPMAN and WENDY JENNIFER CHAPMAN v. MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS • Application for the review of a decision of the Minister for Aboriginal Affairs to refuse access to the contents of a letter sent by the Minister to the Prime Minister. • The letter concerned a declaration to be made in relation to protection of Aboriginal sites from the effects of the construction of a bridge.

22. Substantive Issues : -Deliberative Process Exemption • The reasons for the refusal by the Minister was that the letter would disclose matter in the nature of, deliberative process and that it would not be in the public interest. • NOTE:The declaration was not raised in Cabinet, • The appellants claimed that what the Minister was doing in his letter, was giving the Prime Minister the opportunity to comment on, or overrule, the Minister's proposed declaration and that under the Act the Minister was not entitled to act upon the direction of either the Cabinet or his colleagues .

23. Substantive Issues : -Deliberative Process Exemption • The Tribunal first determined if the document was consultative or deliberative –Found it was consultative i.e. sought advice or counsel from a person • Then the Tribunal considered whether the letter contains any statements of fact which, may not be exempt from disclosure and if so, whether those parts of the letter can or should be severed and released– The Tribunal determined that part of letter contained proposals part conclusions. Conclusions= facts and severed the letter

24. Substantive Issue – The Public Interest • The court found the following reasons irrelevant in relation to making a decision on whether or not a release was in the public interest: • The fact that the letter involves consultation at the highest level of government between a Minister and the Prime Minister . • That the issues were highly controversial • The stated need of the Minister to consult with the Prime Minister "with complete frankness".

25. Substantive Issues : -Deliberative Process Exemption • If a request was made for correspondence between the Minister of Land and Environment and the Prime Minister (that contains the reservations of the Minister to the declaration, requests advise and discusses the value of the land) on a proposal for the declaration of a Protected Area in Trewlany, Jamaica,would you recommend this be released, or claim an exemption and why?

26. Cabinet Documents • S.15 of ATI Act Document is exempt if it is a Cabinet Document that is • (a) a Cabinet Submission, Note, or other document created for submission to Cabinet and it has been or is intended to be submitted, • (b) a Cabinet Decision, or other official record of deliberation of Cabinet • DOES NOT apply to documents appended that contain material of a factual nature, reports, studies scientific or technical nature or document that publishes a decision

27. Canada’s Access to Information Act- Exclusion • S.69 –(1)This Act does not apply to confidences of the Queen's Privy Council for Canada, including, without restricting the generality of the foregoing,       • (a) memoranda the purpose of which is to present proposals or recommendations to Council; • (b) discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions; • (c) agenda of Council or records recording deliberations or decisions of Council; • (d) records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

28. Canada’s Access to Information Act • (e) records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); • (f) draft legislation; and • (g) records that contain information about the contents of any record within a class of records referred to in paragraphs (a) to (f). •   Paragraph 69(3)(b) of the Access Act states: • (3) Subsection (1) does not apply to •  (b) discussion papers described in paragraph 1(b) • (i) if the decisions to which the discussion papers relate have been made public, or • (ii) where the decisions have not been made public, if four years have passed since the decisions were made. R.S. 1985, c. A-1, s.69; 1992, c.1 s.144 (F).

29. Cabinet Documents • CANADA (INFORMATION COMMISSIONER) V. CANADA (MINISTER OF THE ENVIRONMENT), [2003] F.C.J. NO. 197 (C.A.) • The requester applied under the Access to Information Act for access to Cabinet information dealing with a specific fuel additive, held by Environment Canada. In 1995 Cabinet had made public its decision to prohibit the inter-provincial trade and import of the additive for commercial purposes, and the relevant legislation was passed in 1997. • The REQUEST:- “Discussion Papers, the purpose of which is to present background explanations, analysis of problems or policy options to the Queen's Privy Council for Canada for consideration by the Queen's Privy Council for Canada in making decisions with respect to Methylcyclopentadienyl Managenese Tricarbonyl (MMT)”

30. Cabinet Documents • Environment Canada denied access to the records on the basis of the Cabinet confidences exclusion • On review, the Information Commissioner decided that portions of the records consisting of background explanations, analyses of problems or policy options should be disclosed, since they fell within the “discussion papers” exception to the exclusion. The Commissioner applied for judicial review. • The Government argued that the Cabinet confidence was an exclusion which was not reviewable by the courts in Judicial Review proceedings

31. Cabinet Documents • The Federal Court, Trial Division, agreed with the Commissioner that any information that could be described as background explanations, analyses of problems or policy options was not excluded and should be disclosed. • The Court specified that this exercise does not require a line-by-line analysis of the documents. What is required, according to the Court, is that the person reviewing the documents determines whether there is, within or appended to the documents, an organized body or corpus of words which, looked upon its own, meets the definition of "discussion papers“ and that such corpus be severed and released to the requester.

32. Canada’s Access to Information Act- Cabinet documents • You have done up a draft Cabinet decision on the acquisition of a computer system that allows the Jamaican Government to store fingerprints and track the number of times persons who have committed crimes have been identified by fingerprint evidence. The draft Cabinet document has appended to it a technical study of an Expert from Canada on the use of this system in Canada and its track record. You then submit it to Cabinet for a decision which you are awaiting. • You receive a request for “ Any draft Cabinet decision on computer systems that store fingerprints and all documents appended to such a draft Cabinet submission , note or other document created for submission to Cabinet, the purpose of which is to present information of a technical nature , and all reports, studies and tests appended there to; for consideration of the Cabinet” Would you release this document(s)? and why?

33. Legal Professional Privilege • The principle is based upon the need to protect a client’s confidence that any communication with his/her professional legal adviser will be treated in confidence and not revealed without consent. • Legal professional privilege protects communications between a professional legal adviser and client from being disclosed, even to a court of law. However the Jamaican Courts have applied the leading case of Buttes Gas and Oil Co. v. Hammer [1980] 3 All E.R. 475, at page 485, to look at these documents. Lord Denning M.R. described the practice of judges calling for and looking at the documents themselves “as (something) we often do nowadays.” • Privilege attaches to the information itself and belongs to the client

34. Legal Professional Privilege • Advice privilege – where no litigation is contemplated or pending • Litigation privilege – where litigation is contemplated or pending • Litigation privilege attaches to all documents, reports, information, evidence and the like obtained for the sole or dominant purpose of the proposed or on-going litigation. • For legal professional privilege to apply, information must have been created or brought together for the dominant purpose of litigation or the seeking or provision of legal advice.

35. Legal Privilege and Personal Privacy • British Columbia • Legal Services Society v. British Columbia (Information and Privacy Commissioner), [2003] • B.C.J. No. 1093 (C.A.) • The Legal Services Society is the provincial body that administers the legal aid program in British Columbia. • A newspaper reporter asked for a list of the top five criminal billers by name and amount billed during a specified period. The Society decided to disclose the amounts billed by the 10 lawyers, but not their names. The Society indicated that it was withholding the names on the basis of the solicitor-client privilege and personal privacy exemptions.

36. Legal Privilege and Personal Privacy • On appeal, the Commissioner held that the names of the lawyers are not privileged because, in this case, they were not associated with any specific client (Order 322-1999). • The Commissioner stated that the names of the lawyers alone could not be privileged, because the purpose of the solicitor-client privilege exemption is to protect confidentiality on behalf of clients, not lawyers.

37. Legal Privilege and Personal Privacy • On judicial review, the Supreme Court quashed the Commissioner’s decision, holding that the privilege applied because a “diligent individual” could ascertain the identity of specific clients from the information at issue, and this in turn would reveal privileged information, i.e., the fact that the person received legal aid. • The British Columbia Court of Appeal upheld the lower court’s decision. Specifically, the Court of Appeal ruled that the possibility of a breach of solicitor-client privilege is a “material one”, and that the Commissioner’s decision was therefore “incorrect”. The Court stated that a decision by the commissioner that places solicitor-client privilege at risk is not acceptable even if it would be considered reasonable.

38. Actionable Breach of Confidence • Actionable breach of confidence : • A duty of confidence arises when one person is provided with information by another in the expectation that the information will only be used or disclosed in accordance with the wishes of the confider. The duty is not absolute • If there is an actionable breach of confidence, the party affected must have the right to take action though the courts.

39. Actionable Breach of Confidence • This duty will only arise based on the circumstances under which information was provided to the authority and second based on the nature of the information. This may be done by contract or may be implicit from the circumstances. An authority cannot contract out their right to provide information under the Act. • The courts have applied a public interest test to determine whether a duty to keep information in confidence may be outweighed by the public interest in disclosure e.g. information concerning misconduct, illegality or gross immorality

40. Information given in confidence • Bacon International Inc. v. Department of Agriculture and Agri‑Food Canada[2002] A.C.F. No.776 (QL) (F.C.T.D.) • This is a case in which an application was made for judicial review by a third party following the Governments decision to disclose a record. The applicants requested non-disclosure based on the fact the information was provided in confidence. • The applicants ran a slaughterhouse and meat processing plant in Quebec. The Government conducts inspections and gives the facilities overall ratings in carrying out its mandate of protecting the public in the food industry.

41. Information given in confidence • The Government received a request for access to information to obtain the rating given by the Department to all facilities specializing in slaughtering and meat processing in Quebec and informed the owners of the factories about the request for information and invited them to send their written comments with respect to the reasons why the record should not be disclosed. • The applicant parties all argued that the information was given in confidence and that if the information was revealed it would result in a financial loss. The Government decided to disclose it.

42. Information given in confidence • The Court ordered that the records be disclosed and decided that when a third party opposed the disclosure of the information they must prove, according to the balance of probabilities, that the requested information should not be disclosed. • The Judge confirmed that the third party claiming the exception provided by the Act must prove that the record: • is confidential in the objective sense of this expression; and • That the information was consistently treated in a confidential manner by the third party.

43. Information given in confidence • The Court decided that the record for which the Companies are trying to obtain an exemption to disclosure contains a rating for facilities issued by the Government in carrying out its mandate of protecting the public in the food industry. • The Court stated that the companies must submit evidence demonstrating to the Court how and why the disclosure would probably cause the alleged harm and must demonstrate a probability of harm • This case is on appeal

44. Commercial Information • S.20ATI Act • (1) an official document is exempt if (b) it contains information concerning the commercial interests of any person or organization including a public authority and the disclosure of that information would prejudice those interests

45. Commercial Information • USA Exemption 4 Permits an agency to withhold “commercial or financial information that was obtained from a person and is privileged or confidential. Information is considered confidential if it is likely to cause substantial harm to the competitive position of the person from whom the information was obtained. • A citizen made a FOIA request to the Food and Drug Administration for all documents concerning clinical studies for all prescription drugs which had a discontinuance because of death or serious injury of patients for 1990-1993

46. Commercial Information • The appellant argued that the information should be released because it prevent other drug companies from making the same mistake and avoid risk to human health. • The Court found that the FOIA was enacted to ensure the public can learn directly about the workings of Government and that it is not open to the public citizen to bolster the case for disclosure by claiming an additional public benefit in that it would prevent risky human trials.They found the data on the anti fungal drug if released could be used to create a competitive product.

47. Commercial Information • They found that if disclosure would provide competitors with valuable insights into operational strengths and weaknesses of a company while they hold their cards close to their chests then this falls within the exemption. • The court then found that conclusory and generalized allegations of substantial competitive harm cannot support an agency’s decision to withhold requested documents. • Finally in releasing some of the documents and exempting some the court found that an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.

48. "Secrecy has its place, but governments are always tempted to overuse the 'secret' stamp. When that happens, it can come at the cost of the public's stake in such other values as safety or clean air and water." Sens. Patrick Leahy and Carl Levin, Restore America's Freedom of Information, 2003