The Office of the Data Protection Commissioner via the press is in possession of the recently released Freedom of Information Bill 2015.

Firstly, I shall like to congratulate the Government and people of The Bahamas for moving one step closer to removing the unnecessary secrecy surrounding government information and allowing ordinary citizens to participate and contribute to all facets of national development.

While, it is my considered view, that the call for openness in governance ought to be properly championed and led by civil society, this Data Protection Commissioner is on record as supporting the implementation of a Freedom of Information Act, as it is an important tool in a healthy and transparent democracy. Our country stands to benefit.

As we continue to make strides, I make the following observations, for the information and/or necessary action of those concerned, as I would be remiss in my capacity as Data Protection Commissioner not to comment.

THE REGIME ISSUE

It is noted that the new draft Freedom of Information Bill, 2015, appears to separate the Office of the Data Commissioner from that of the Information Commissioner.

It should be noted that both the access to information and privacy are equal fundamental rights, neither law should arbitrarily trump the other.

If it is the wish of the Cabinet and by extension Parliament to create two regimes as opposed to the one regime previously contained in the previous Bill, each regime must be given equal right and the same degree of independence and to the extent possible the same degree of resources.

To ensure that there is no imbalance between the Regimes, the Data Protection (Privacy of Personal Information Act, 2003) must be simultaneously amended.

TWO REGIMES

The primary benefit of to having two regimes is that each of the two can create clear champions for such rights.

However, the primary concern of having two bodies is that there will be conflict between the two and that could become messy, expensive and embarrassing. This has been experienced in the case of Canada at the federal level where the two commissioners there have in been public fights. There is also the concern that public bodies and the public will receive conflicting advice from the two commissioners when they disagree.

For example, a situation can arise where the Information Commissioner advises the institution to disclose personal information in the public interest, but the Privacy Commissioner advises the institution to protect the information on the grounds that the public interest case does not clearly outweigh the invasion of privacy that could result from disclosure. This puts the institution in the difficult position of having conflicting recommendations from the two Commissioners.

It has been argued that if there are two Commissioners, there will be a need to be a mechanism to resolve conflicts. According to Slovenian Information Commissioner Musar in 2006, “Two bodies which operate in an area so closely interlinked would inevitably come into conflicting situations [with] the institute of an administrative dispute as a tool for settling such conflicts. Such a manner of settling mutual conflicts though, would, due to the long time periods of dispute resolutions, mean a lessened legal certainty.” This happened in the case of Slovenia. The Slovenian Information Commissioner found that the system was inefficient. The Slovenian Regime consequentially merged into one.

It is argued that when there are two agencies, there should be formal agreements to cooperate to minimize conflicts. In New Zealand, the Privacy Commissioner and the Ombudsman have a formal consultative process that requires the Ombudsman to consider the views of the privacy Commissioner before determining whether to release personal information. In Ireland the two bodies are required to cooperate.

ONE REGIME

Countries such as the United Kingdom, Hungary, Thailand, many Canadian Provinces, German Lander, Mexican States, and Swiss cantons at the subnational level have adopted a one Regime approach. In the region, where there are Freedom of Information and draft proposed Data Protection Laws, like Trinidad and Tobago, and the Cayman Islands, there is one merged regime. This allows better balancing and greater operational efficiency.

In most cases, the existing commission is given additional authority with the adoption of a new legislation. In the United Kingdom, the Data Protection Commission evolved into the Information Commission. A similar process occurred in Germany, Malta, and Switzerland.

Having a single body can reduce the possibility of institutional conflict. In practice, many requests for information under the FOIA will relate to personal information: having this dual expertise will allow for a better balancing. According to Elizabeth France (1999):

“…working within one institution should allow more focused

and effective consideration than working across institutional

boundaries. Any tension will be contained within the

institution….”

The most significant benefit of having a single body is the shared expertise and reduction of conflict. As noted earlier, there is a strong interrelation between the two rights. Although they have some areas of conflict, they have some areas of commonality.

Most importantly, there is the economic cost of two commissions. It may be quite difficult to justify the cost of two commissions in small jurisdictions when economic situations are difficult or as government are cutting back to create a new body.

POLICY MAKERS

Finally, it is a decision for the policy makers to decide which Regime approach is better for The Bahamas. If, that decision remains two regimes, then I strongly urge the government to amend The Data Protection Privacy of Personal Information Act, 2003 simultaneously to avoid creating an imbalance in the Information Regime in The Bahamas.

Strong regard should be given to the fact that we have concluded over 33 Tax Information Exchange Agreements with European nations, which requires The Bahamas to maintain adequate data protection provisions. Further, the urgent need for the notification by data Controllers of data breaches and all other relevant clauses such as immunity and confidentiality for staff shall be lifted from the FOIA Bill to reflect international standards and parity with the FOIA.

2. INDEPENDENCE

It is noted that provisions were added to strengthen the Information Commissioner’s Office. This is welcomed.

The Information Commissioner is appointed by Governor-General on the advice of the Prime Minister after consultation with the Leader of the Opposition. The Governor General can upon recommendation of the Information then appoint Deputy Information Commissioners and Assistant Information Commissioners.

However, it is noted that the staff of the Information Commissioner will not be independent. They will be appointed on the advice of the Public of Service Commission and not the Commissioner. In my considered view this is egregious. This would mean that the Information Commissioner would have no control over the hiring and promotion of his or her staff. This is not consistent with best practice. In the Financial Intelligence Unit Act, the Director is allowed under section 3 of the FIU Act to appoint “such other personnel as the Director considers necessary.” Therefore section 35 of the FOIA Bill should be corrected to give the Information Commissioner more control of the hiring and appointment of the staff, as this would directly impact the level of independence enjoyed by the Commissioner.

Further, the reference to the Freedom of Information Unit shall be removed as the Information Commissioner shall have an Office or Commission. The reference to a Freedom of Information Unit shall only be used, in my considered view, if there is one merged Information Regime which comes under an Information Commissioner’s Office. Consequently, there may be a Freedom of Information Unit and a Data Protection Unit which each will be headed by a Deputy or Assistant Information Commissioner.

Finally, It is hoped that the Information Commissioner’s Office and the Data Protection Commissioner’s Office will be given a separate Head in the National Budget to ensure its independent function.

CONCLUSION

It is my considered view that the policy makers have heard all other arguments ad nauseam and therefore, it may be futile to repeat them.

We have provided and assisted the process by providing the Committee with all of the opinions of both local and international experts, with draft legislation from the Region, the recommendation of the appointment of a representative from COB, and the draft FOIA regulations provided to this Office.

This Office is satisfied that we have played our role in assisting the process and wish the Government and people of The Bahamas, every success in carrying out this most important endeavor.