MOST States are moving towards enactment of a Freedom of Information Act as a push towards the transparency and accountability so vital to the life of our democracies. Does St Lucia need a Freedom of Information Act or is it that our cultural proclivity for roro surpasses that legislative need? There were two highly classified documents over the last two years which one would have thought would be held in tight guard. We found out during the last election campaign that the IMPACS report was leaked, despite the then Prime Minister’s insistence that this is so highly confidential that it could not be relayed to the public.
Quite recently we saw the just signed Desert Stat Holding Agreement vividly displayed on Facebook, within days after the ink dried. Yet despite these major ‘bust pipe’, we are past leaks in St Lucia, there is merit in the pursuit of a Freedom of Information Act.
There is an interesting case still ongoing in Trinidad concerning the interpretation of Section 35 of the Freedom of Information Act. The Joint Consultative Council for the Construction Industry (JCC) had gone to the court to force the Government under the Freedom of Information Act to release the legal opinion on whether the tender for the Invader Bay project was in keeping with the Central Tenders Board Act. The Judge who heard the matter gave judgment that the legal opinion should be released. The State appealed the judgment and the matter went to the Court of Appeal.
The Court of Appeal moved far away from the Invader Bay issue to dealing with the Freedom of Information Act and its interface with the Constitution, a far larger issue. All three Judges of the Court of Appeal upheld that legal professional privilege ‘prima facie’ applies to the instructions given and the advice received in the Invaders Bay matter. This meant that the State can claim legal professional privilege as a reason for not releasing the legal opinion.
The departure came as to whether Section 35 of the Freedom of Information Act – the public interest override provision, holds in this matter. The Court of Appeal stated that the Government of Trinidad and Tobago ( GOTT) did not inform the JCC that a Section 35 evaluation had been carried out and nor was there demonstration that there was justification for denial of access.
The present government who stood with the JCC in demanding the release of the legal opinion when in opposition, in a most surprising decision decided to go to the Privy Council for review. One believes the concern is that the bar that the Court has set as to what is defined as ‘public interest’ is considered too low for the political directorate. The Court is of the opinion that the Section 35 reasoning must be adequate and intelligible for refusal, and that these reasons must sit in the Constitution which promotes participatory democracy, and promotes transparency and accountability in the decision making of public authorities. This bar is very low indeed in the historical context of our institutional secrecy in Caribbean democracies.
We have to accept that there are major leakages in our economy due to corruption in Saint Lucia, and the only way to create the transparency and accountability that are now the’ Mutt and Jeff’ of local political lingo, is to legislate a Freedom of Information Act. I believe the Act will bring a level of discipline in the operations of the State in that actions and decisions can be placed for public scrutiny in the future. There is a primary responsibility that devolves upon every citizen which is the protection and promotion of our democracy. Our Constitution places that responsibility upon every citizen:
“We the people of Saint Lucia consider that individually, each person has duties towards every other and to the community and is under obligation to observe and promote the rights, freedoms and values recognized in this constitution’’
We cannot run away from that responsibility and despite the ‘politics of squeeze’, which I am very familiar with; we have no choice but to continue to run the good race and finish well. One of the dangers of the Facebook world is that it has created ‘cyber cowards’ who hide behind false names and spew venom, they do not possess that dual God given spherical mass that brings boldness to take responsibility for one’s discourse. These ‘cyber cowards’ are a danger to our democracy and in the wonderfully coined phrase, are indeed – ‘Irrelevant details’.