Freedom of Information: A Comparative Legal Survey - Federation of ...

society discussions on the issue date back to at least 1991 and a Green Paper 186 was published in 1995,
nearly ten years before the law fi nally came into force for all public bodies. 187
The Act contains strong procedural guarantees, a reasonably tight regime of exceptions and a good system
of appeals. The proactive disclosure provisions are limited and the practice is also weak in this area.
There are also some unnecessary limitations on the scope of the Act. In addition to providing for access to
information, the Act also contains a detailed system for updating and correcting personal records.
The Access to Information Unit of the Jamaica Archives and Records Department in the Offi ce of the
Prime Minister was created in January 2003 with a mandate to oversee implementation of the Act. The
ATI Stakeholders Advisory Group, involving offi cials, NGOs and businesses, is a voluntary group that also
monitors implementation. 188 The latest report available on the website of Access to Information Unit, the
Director’s Report on Implementation, notes that in the fi rst quarter of 2005, some 135 requests were
received, 75 were granted in full, 10 were transferred and some 84% were responded to within the statutory
time limits. 189
The Right of Access
Section 6(1) of the Act sets out a clear right of access, providing: “[E]very person shall have a right to
obtain access to an offi cial document, other than an exempt document.” The objects of the Act, contained
in section 2, are “to reinforce and give further effect to certain fundamental principles underlying the
system of constitutional democracy”, specifi cally “government accountability; transparency; and public
participation in national decision-making”. These objectives are to be achieved through granting the public
a general right to access documents held by public bodies, subject to the exceptions, which balance the right
against the overriding public interest in confi dentiality of certain governmental, commercial or personal
information. This provides a good backdrop for the Act and suggests a positive, purposive approach to
interpretation.
As noted, the Act applies to everyone and no restrictions on the basis of nationality, citizenship or residence
appear to apply.
The right of access applies to documents, rather than information as such. A document is defi ned in
section 3 broadly to include anything in writing, maps, plans, graphs or drawings, photographs, and devices
which record sound, visual or other data which is capable of being reproduced from the device. An ‘offi cial
document’, to which the right of access formerly pertains (see above), is defi ned as any document held by
a public body “in connection with its functions as such”, whether or not it was created by that authority, or
whether or not it was created before the commencement of the Act. ‘Held’ for this purpose means that the
document is in the possession, custody or control of the public body.
Pursuant to section 5(1)(c), the Act applies only to offi cial documents created or held by a public body for
thirty years or less from the day on which the Act comes into force. The minister responsible for the Act,
currently the Minister of Information, may, by order subject to negative resolution, 190 extend application
back in time to documents created or held by a public body more than thirty years ago.
Finally, pursuant to section 6(4), where a document is accessible to the public pursuant to another law, or
otherwise, or available for purchase, these other means of access apply to the exclusion of the rules set
out in the Act.
There are two important limitations on the scope of the Act in terms of documents covered. First, the
document must pertain to the functions of the public body which holds it. While it may be questioned why a
public body would hold information not related to its functions, this might still be abused as a grounds for
refusing to provide access to information. Second, the Act does not apply to documents which are more than
thirty years old. This is unfortunate and has not been found to be necessary in other access to information
laws. The Archives Act does provide for openness of public documents under certain conditions after 30
years, but this is limited and does not conform to accepted right to information standards. 191
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