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Mar 26

Freedom of Information Bill, 2015

No.    of  2015             Freedom of  Information Bill, 2015             Saint Christopher

and Nevis.

 

 

ARRANGEMENT OF SECTIONS

 

SECTION

 

PART 1

PRELIMINARY

 

  1. Short title and commencement
  2. Interpretation
  3. Act binds the Crown

PART 2

THE RIGHT TO ACCESS INFORMATION HELD BY PUBLIC AND PRIVATE BODIES

 

  1. Freedom of information
  2. General right of access
  3. Legislation prohibiting or restricting disclosure
  4. Public and private bodies
  5. Records
  6. Request for information
  7. Time limits for responding to requests
  8. Notice of response
  9. Fees
  10. Means of communicating information
  11. If record is not held
  12. Vexatious, repetitive or unreasonable  requests

 

 

 

PART 3

MEASURES TO PROMOTE OPENNESS

 

  1. Guide to using this Act
  2. Information officer
  3. Duty to publish
  4. Guidance on duty to publish
  5. Maintenance of records
  6. Training of officials
  7. Reports to Commissioner

 

 

PART 4

EXCEPTIONS

  1. Public interest override
  2. Information already publicly available
  3. Severability
  4. Personal information
  5. Legal privilege
  6. Commercial and confidential information
  7. Health and safety
  8. Law enforcement
  9. Defence and security
  10. Public economic interests
  11. Policy making and operations of public bodies
  12. Time limits

 

PART 5

COMMISSIONER

 

  1. Appointment of Commissioner
  2. Independence and powers
  3. Salary and expenses
  4. Staff
  5. General activities
  6. Reports
  7. Protection of Commissioner

 

PART 6

ENFORCEMENT BY COMMISSIONER

 

  1. Complaint to Commissioner
  2. Complaint decision
  3. Direct implementation of decision
  4. Commissioner’s powers to investigate
  5. Appeal from Commissioner’s decisions and orders
  6. Binding nature of Commissioner’s decisions and orders

 

PART 7

WHISTLEBLOWERS

 

  1. Whistleblowers

 

PART 8

CRIMINAL AND CIVIL RESPONSIBILITY

 

  1. Good faith disclosures
  2. Criminal offences

 

PART 9

MISCELLANOEOUS PROVISIONS

 

  1. Regulations

 

 

No.    of  2015             Freedom of  Information Bill, 2015             Saint Christopher

and Nevis.

 

 

 

SAINT CHRISTOPHER AND NEVIS

­­­­­­­­­­­­­­­

 

No.         of 2015

 

 

 

A BILL to promote maximum disclosure of information in the public interest, to guarantee the right of everyone to access to information, to provide for effective mechanisms to secure that right and for related matters:

 

 

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the National Assembly of Saint Christopher and Nevis and by the authority of the same as follows:

 

PART 1

PRELIMINARY

 

 

  1. Short title and commencement

(1)       This Act may be cited as the Freedom of Information Act 20015.

 

(2)        This Act shall come into force on a day to be fixed by the Minister by Order published in the Gazette.

 

  1. Interpretation.

In this Act

 

“Commissioner” means the Information Commissioner, appointed pursuant to Part 5;

 

“information officer” means a person appointed as an information officer pursuant to section 17(1);

 

“Minister” means the Minister responsible for justice;

 

“official” means any person employed by the relevant body, whether permanently or temporarily and whether part-time or full-time;

 

“person” includes a body corporate or an unincorporated body;

 

“personal information” means information which relates to a natural living person who can be identified from that information; and

 

“private body” has the meaning given to it pursuant to section 7(3);

 

“public body” has the meaning given  to it pursuant to section 7(1) and (2);

 

“publish” means make available in a form generally accessible to members of the public and includes print, broadcast and electronic forms of dissemination;

 

“record” has the meaning given to it pursuant to section 8.

 

  1. Act binds the Crown

This Act shall bind the Crown.

 

PART 2

THE RIGHT TO ACCESS INFORMATION HELD BY PUBLIC AND PRIVATE BODIES

 

 

  1. Freedom of Information.

Every person shall have the right to freedom of information, including the right to access information held by public bodies, subject to the provisions of this Act.

 

 

  1. General right of access.

(1)        A person making a request for information to a public body shall be entitled:

 

  • to be informed whether or not the public body holds a record containing that information or from which that information may be derived; and

 

  • if the public body does hold such a record, to have that information communicated to him or her.

 

(2)        A person making a request for information from a private body which holds information necessary for the exercise or protection of any right shall, subject to the relevant provisions of this Part and Part 4, be entitled to have access to that information.

 

 

  1. Legislation prohibiting or restricting disclosure.

(1)        This Act applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record by a public or private body.

 

(2)        Nothing in this Act limits or otherwise restricts the disclosure of information pursuant to any other legislation, policy or practice.

 

 

  1. Public and Private bodies.

(1)        For the purposes of this Act, a public body includes any body:

 

  • established by or under the Constitution;

 

  • established by Statute;

 

  • which forms part of any level or branch of Government;

 

  • owned, controlled or substantially financed by funds provided by Government or the State; or

 

  • carrying out a statutory or public function;

 

provided that the bodies referred to in paragraph (e) are public bodies only to the extent of their statutory or public functions.

 

(2)        The Minister may by Order published in the Gazette designate as a public body anybody that carries out a public function.

 

(3)        For purposes of this Act, a private body includes anybody, excluding a public body, that

 

  • carries on any trade, business or profession; or

 

  • has legal personality.

 

  1. Records.

(1)        For purposes of this Act, a record includes any recorded information, regardless of its form, source, date of creation, or official status, whether or not it was created by the body that holds it and whether or not it is classified.

 

(2)        For purposes of this Act, a public or private body holds a record if–

  • the public or private body holds the record, other than on behalf of another person; or

 

  • another person holds the record, on behalf of the public or private body.

 

 

  1. Request for information.

(1)        For purposes of section 5, a request for information is a request in writing to any official of a public or private body that is in sufficient detail to enable an experienced official to identify, with reasonable effort, whether or not the body holds a record with that information.

 

(2)        Where a request for information made pursuant to section 5(1) does not comply with the provisions of subsection (1), the official who receives the request shall, subject to subsection (5), render such reasonable assistance, free of charge, as may be necessary to enable the request to comply with subsection (1).

 

(3)        A person who is unable, because of illiteracy or disability, to make a written request for information pursuant to section 5(1) may make an oral request, and the official who receives an oral request shall, subject to sub-section (5), reduce it to writing, including their name and position within the body, and give a copy thereof to the person who made the request.

 

(4)        A request for information pursuant to section 5(2) must identify the right the person making the request is seeking to exercise or protect and the reasons why the information is required to exercise or protect that right.

 

(5)        An official who receives a request for information may transfer that request to the information officer for purposes of complying with subsection (2) or (3).

 

(6) A public or private body may prescribe a form for requests for information, provided that such forms do not unreasonably delay requests or place an undue burden upon those making requests.

 

(7)        A public or private body which receives a request for information shall provide the person making the request with a receipt documenting the request.

 

 

  1. Time limits for responding request.

.(1)       Subject to subsections (2) and (3), a public or private body must respond to a request for information pursuant to section 5 as soon as is reasonably possible and in any event within twenty working days of receipt of the request.

 

(2)        Where a request for information relates to information which reasonably appears to be necessary to safeguard the life or liberty of a person, a response must be provided within 48 hours.

 

(3)        A public or private body may, by notice in writing within the initial twenty day period, extend the period in subsection (1) to the extent necessary, and in any case to not more than forty working days, where the request is for a large number of records or requires a search through a large number of records, and where compliance within twenty working days would unreasonably interfere with the activities of the public or private body.

 

(4) Failure to comply with this section shall be deemed to be a refusal of the request.

 

 

 

 

  1. Notice of response.

(1)        A response made pursuant to section 10 to a request for information pursuant to section 5(1) must be by notice in writing and state:

 

  • the applicable fee, if any, pursuant to section 12, in relation to any part of the request which is granted, and the form in which the information will be communicated;

 

  • adequate reasons for the refusal in relation to any part of the request which is not granted subject to Part 4 of this Act;

 

  • where there has been a refusal to indicate whether or not the public body holds a record containing the relevant information, the fact of such refusal and adequate reasons for it; and

 

  • any right of appeal the person who made the request may have.

 

(2)        A response made pursuant to section 10 to a request for information pursuant to section 5(2) must be by notice in writing and state

 

  • in relation to any part of the request which is granted, the applicable fee, if any, pursuant to section 12, and the form in which the information will be communicated; and

 

  • in relation to any part of the request which is not granted, adequate reasons for the refusal.

 

(3)        In relation to any part of a request that is granted, communication of the information must take place forthwith, subject to section 12.

 

  1. Fees.

(1) The communication of information made pursuant to a request under section 5 by a public or private body may, subject to subsections (2) and (3), be made conditional upon payment by the person making the request of a reasonable fee, which shall not exceed the actual cost of searching for, preparing and communicating the information.

 

(2)        Payment of a fee shall not be required for requests for personal information, and requests in the public interest.

 

(3)        The Minister may, after consultation with the Commissioner, make Regulations providing–

 

  • for the manner in which fees are to be calculated;

 

  • that no fee is to be charged in cases specified in the Regulations; and

 

  • that any fee cannot exceed a certain maximum.

 

(4)        A public body shall not require payment of a fee pursuant to subsection (1) where the cost of collecting that fee would exceed the amount of the fee.

 

 

  1. Means of communicating information.

(1)        Where a request indicates a preference as to the form of communication of information contained in subsection (2), a public or private body communicating information pursuant to a request for information under section 5 shall, subject to subsection (3), do so in accordance with that preference.

 

(2)        A request may indicate the following preferences as to the form of communication of information

 

  • a true copy of the record in permanent or other form;

 

  • an opportunity to inspect the record, where necessary using equipment normally available to the body;

 

  • an opportunity to copy the record, using his or her own equipment;

 

  • a written transcript of the words contained in a sound or visual form;

 

  • a transcript of the content of a record, in print, sound or visual form, where such transcript is capable of being produced using equipment normally available to the body; or

 

  • a transcript of the record from shorthand or other codified form.

 

(3)        A public or private body shall not be required to communicate information in the form indicated by the person making the request where to do so would

 

  • unreasonably interfere with the effective operation of the body; or

 

  • be detrimental to the preservation of the record.

 

(4)        Where a record exists in more than one language, communication of the record shall, from among those languages, be given in accordance with the language preference of the person making the request.

 

 

  1. If record is not held.

(1)        Where an official who receives a request pursuant to section 5(1) believes that that request relates to information that is not contained in any record held by the public body, the official may transfer the request to the information officer for purposes of compliance with this section.

 

(2)        Where an information officer receives a request pursuant to subsection (1), he or she shall confirm whether or not the public body holds a record containing the information and, if it does not, shall, if he or she knows of another public body which holds the relevant record, as soon as practicable, either

 

  • transfer the request to that public body and inform the person making the request of such transfer; or

 

  • indicate to the person making the request which public body holds the relevant record,

 

whichever would be likely to ensure more rapid access to the information.

 

(3)        Where a request is transferred pursuant to subsection (2)(a), the time limit for responding to requests under section 11 shall begin to run from the date of transfer.

 

(4)        A private body which receives a request pursuant to section 5(2) relating to information that is not contained in any record held by the private body shall notify the person making the request that it does not hold the information.

 

  1. Vexatious, repetitive or unreasonable request.

(1)        A public or private body is not required to comply with a request for information which it determines is vexatious or where it has recently complied with a substantially similar request from the same person.

 

(2)        A public or private body is not required to comply with a request for information where to do so would unreasonably divert its resources.

 

 

PART 3

MEASURES TO PROMOTE OPENNESS

 

  1. Guide to using the Act.

(1)        The Commissioner shall, as soon as practicable, compile a clear and simple guide containing practical information to facilitate the effective exercise of rights pursuant to this Act, and shall disseminate the guide widely in an accessible form.

 

(2)        The guide in subsection (1) shall be updated on a regular basis, as necessary.

 

  1. Information Officer.

(1)        Every public body shall appoint an information officer and ensure that members of the public have easy access to relevant information concerning the information officer, including his or her name, function and contact details.

 

(2)        The information officer shall, in addition to any obligations specifically provided for in other sections of this Act, have the following responsibilities:

 

  • to promote within the public body the best possible practices in relation to record maintenance, archiving and disposal; and

 

  • to serve as a central contact within the public body for receiving requests for information, for assisting persons seeking to obtain information and for receiving complaints regarding the performance of the public body relating to information disclosure.

 

  1. Duty to Publish.

Every public body shall, in the public interest, publish and disseminate in an accessible form, at least annually, key information including but not limited to:

 

  • a description of its structure, functions, duties and finances;

 

 

  • relevant details concerning any services it provides directly to members of the public;

 

  • any direct request or complaint mechanism available to members of the public regarding acts or a failure to act by that body, along with a summary of any requests, complaints or other direct actions by members of the public and that body’s response;

 

  • a simple guide containing adequate information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a request for information;

 

  • a description of the powers and duties of its senior officers, and the procedure it follows in making decisions;

 

  • any regulations, policies, rules, guides or manuals regarding the discharge by that body of its functions;

 

  • the content of all decisions and policies it has adopted which affect the public, along with the reasons for them, any authoritative interpretations of them, and any important background material; and

 

  • any mechanisms or procedures by which members of the public may make representations or otherwise influence the formulation of policy or the exercise of powers by that public body.

 

  1. Guidance on duty to publish.

The Commissioner shall:

 

  • publish a guide on minimum standards and best practices regarding the duty of public bodies to publish pursuant to section 18; and

 

  • upon request, provide advice to a public body regarding the duty to publish.

 

 

 

  1. Maintenance of records.

(1)        Every public body is under an obligation to maintain its records in a manner which facilitates the right to information, as provided for in this Act, and in accordance with the Code of Practice issued pursuant to subsection (3).

 

(2)        Every public body shall ensure that adequate procedures are in place for the correction of personal information.

 

(3)        The Commissioner shall, after appropriate consultation with interested parties, issue and from time to time update a Code of Practice relating to the keeping, management and disposal of records, as well as the transfer of records to the National Archives.

 

  1. Training of officials.

Every public body shall ensure the provision of appropriate training for its officials on the right to information and the effective implementation of this Act.

 

  1. Reports to Commissioner.

The information officer of every public body shall submit annually to the Commissioner a report on the activities of the public body pursuant to, or to promote compliance with, this Act, which shall include information about:

 

  • the number of requests for information received, granted in full or in part, and refused;

 

  • how often and which sections of the Act were relied upon to refuse, in part or in full, requests for information;

 

  • appeals from refusals to communicate information;

 

  • fees charged for requests for information;

 

  • its activities pursuant to section 18;

 

  • its activities pursuant to section 20; and

 

  • its activities pursuant to section 21.

 

PART 4

EXCEPTIONS

 

 

  1. Public interest override.

Notwithstanding any provision in this Part, a body may not refuse to indicate whether or not it holds a record, or refuse to communicate information, unless the harm to the protected interest outweighs the public interest in disclosure.

 

 

  1. Information already publicly available.

Notwithstanding any provision in this Part, a body may not refuse to communicate information where the information is already publicly available.

 

  1. Severability.

If a request for information relates to a record containing information which, subject to this Part, falls within the scope of an exception, any information in the record which is not subject to an exception shall, to the extent it may reasonably be severed from the rest of the information, be communicated to the person making the request.

 

  1. Personal information.

(1)        A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would involve the unreasonable disclosure of personal information about a natural third party.

 

(2)        Subsection (1) does not apply if:

 

  • the third party has effectively consented to the disclosure of the information;

 

  • the person making the request is the guardian of the third party, or the next of kin or the executor of the will of a deceased third party;

 

  • the third party has been deceased for more than 20 years; or

 

  • the third party is or was an official of a public body and the information relates to his or her function in that capacity.

 

  1. Legal privilege.

A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where the information is privileged from production in legal proceedings, unless the person entitled to the privilege has waived it.

 

  1. Commercial and confidential information.

A body may refuse to communicate information if:

 

  • the information was obtained from a third party and to communicate it would constitute an actionable breach of confidence;

 

  • the information was obtained in confidence from a third party and:

(i)             it contains a trade secret; or

 

  • to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of that third party; or

 

  • the information was obtained in confidence from another State or international organization, and to communicate it would, or would be likely to, seriously prejudice relations with that State or international organization.

 

  1. Health and safety.

A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, endanger the life, health or safety of any person.

 

  1. Law Enforcement.

A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to–

 

  • the prevention or detection of crime;

 

  • the apprehension or prosecution of offenders;

 

  • the administration of justice;

 

  • the assessment or collection of any tax or duty;

 

  • the operation of immigration controls; or

 

  • the assessment by a public body of whether civil or criminal proceedings, or regulatory action pursuant to any enactment, would be justified.

 

 

  1. Defence and Security.

A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the defence or national security of Saint Christopher and Nevis.

 

  1. Public economic interests.

(1)        A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the ability of the Government to manage the economy of Saint Christopher and Nevis.

 

(2)        A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to, cause serious prejudice to the legitimate commercial or financial interests of a public body.

 

(3)        Subsection (1) or (2) do not apply insofar as the request relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.

 

  1. Policy making and operation of public bodies.

(1)        A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, where to do so would, or would be likely to–

 

  • cause serious prejudice to the effective formulation or development of government policy;

 

  • seriously frustrate the success of a policy, by premature disclosure of that policy;

 

  • significantly undermine the deliberative process in a public body by inhibiting the free and frank provision of advice or exchange of views; or

 

  • significantly undermine the effectiveness of a testing or auditing procedure used by a public body.

 

(2)        A body may refuse to indicate whether or not it holds a record, or refuse to communicate information, which is:

 

  • the official record of any deliberation or decision of Cabinet;

 

  • a document that has been prepared by a Minister of Government or on his behalf or by a public authority for the purpose of submission for consideration by Cabinet or a document which has been considered by Cabinet and which is related to issues that are or have been before Cabinet;

 

  • a document prepared for the purpose of briefing a Minister of Government in relation to issues to be considered by Cabinet;

 

  • a document that is a copy or draft of, or contains extracts from, a document referred to in paragraph (a), (b) or (c); or

 

  • a document the disclosure of which would involve the disclosure of any deliberation or decision of Cabinet, other than a document by which a decision of Cabinet was officially published.

 

(3)        Subsections (1) and (2) do not apply to facts, analyses of facts, technical or scientific data or statistical information unless the disclosure would involve the disclosure of any deliberation or decision of Cabinet.

 

  1. Time limits.

(1)        The provisions of sections 27 to 32 apply to the extent that the harm they envisage would, or would be likely to, occur at or after the time at which the request is considered.

 

(2)        Sections 28, 30, 31 and 32 do not apply to a record which is more than thirty years old.

 

 

PART 5

COMMISSIONER

 

 

 

 

 

  1. Appointment of Commissioner.

(1)        An Information Commissioner shall be appointed by the Governor General after nomination by a two-thirds majority vote of the National Assembly, and after a process in accordance with the following principles–

 

  • participation by the public in the nomination process;

 

  • transparency and openness; and

 

  • the publication of a shortlist of candidates.

 

(2)        A person shall not be appointed as the Commissioner if he or she:

 

(a)  holds an official office in, or is an employee of a political party, or holds an elected or appointed position in Government or Parliament; or

 

(b)  has been convicted, after due process in accordance with internationally accepted legal principles, of a violent crime or a crime of dishonesty or theft, for which he or she has not been pardoned.

 

(3)        The Commissioner shall hold office for a term of five years, and may be re-appointed to serve a maximum of two terms, but may be removed by the Governor General upon a recommendation passed by a two-thirds majority vote of the National Assembly.

 

(4) Notwithstanding subsections (1), (2) and (3) the Ombudsman, appointed under the Ombudsman Act 2006, shall be the Information Commissioner, until such time as Parliament may appoint another person to that office.

 

  1. Independence and powers

(1)        The Commissioner shall enjoy operational and administrative autonomy from any other person or entity, including the Government and any of its agencies, except as specifically provided for by law.

 

(2)        The Commissioner shall have all powers, direct or incidental, as are necessary to undertake his or her functions as provided for in this Act, including full legal personality, and the power to acquire, hold and dispose of property.

 

  1. Salary and Expenses.

(1) The Commissioner shall be paid a salary equal to the salary of a judge of the High Court and is entitled to be paid reasonable travel and living expenses incurred in the performance of his or her duties.

 

(2) Notwithstanding subsection (1), where the Commissioner is also the Ombudsman he or she shall be paid only the salary of the Ombudsman.

 

 

 

  1. Staff.

(1) The Commissioner may appoint such officers and employees as are necessary to enable him or her to perform his or her duties and functions.

 

(2) Notwithstanding subsection (1) the staff of the Office of the Ombudsman shall be the staff of the Office of the Commissioner, until such time when an Commissioner who is not also the Ombudsman is appointed.

 

  1. General activities.

In addition to any other powers and responsibilities provided for in this Act, the Commissioner may:

 

  • monitor and report on the compliance by public bodies with their obligations under this Act;

 

  • make recommendations for reform of a general nature and directed at specific public bodies;

 

  • co-operate with or undertake training activities for officials of public bodies on the right to information and the effective implementation of this Act;

 

  • refer to the appropriate authorities, cases which reasonably disclose evidence of criminal offences under this Act; and

 

  • publicize the requirements of this Act and the rights of persons under it.

 

  1. Reports.

(1)        The Commissioner shall, within three months after the end of each financial year, lay before the National Assembly an annual report on compliance by public bodies with this Act, the activities of his or her office and audited accounts of his or her office during that financial year.

 

(2) The Commissioner may from time to time lay before the National Assembly such other reports as he or she deems appropriate.

 

 

  1. Protection of Commissioner.

(1)        No criminal or civil proceedings shall lie against the Commissioner, or against any person acting on behalf of or under the direction of the Commissioner, for anything done, reported or said in good faith in the course of the exercise of any power or duty pursuant to this Act.

 

(2) For the purposes of the law of libel or slander, anything said or any information supplied pursuant to an investigation under this Act is privileged, unless that information is shown to have been said or supplied with malice.

 

 

 

PART 6

ENFORCEMENT BY COMMISSIONER

 

  1. Complaint to Commissioner.

A person who has made a request for information may apply to the Commissioner for a decision that a public or private body has failed to comply with an obligation under Part 2, including by–

 

  • refusing to indicate whether or not it holds a record, or to communicate information, contrary to section 5;

 

  • failing to respond to a request for information within the time limits established in section 10;

 

  • failing to provide a notice in writing of its response to a request for information, in accordance with section 11;

 

  • failing to communicate information forthwith, contrary to section 11(3);

 

  • charging an excessive fee, contrary to section 12; or

 

failing to communicate information in the form requested, contrary to section 13.

 

  1. Complaint decision.

.(1)       The Commissioner shall, subject to subsection (2), decide an application made pursuant to section 42 as soon as is reasonably possible, and in any case within 30 days, after giving both the complainant and the relevant public or private body an opportunity to provide their views in writing.

 

(2)        The Commissioner may summarily reject applications:

 

  • which are frivolous, vexatious or clearly unwarranted; or

 

  • where the applicant has failed to use any effective and timely internal appeals mechanism provided by the relevant public or private body.

 

(3)        In any application made pursuant to section 42, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under Part 2.

 

(4)        In his or her decision made pursuant to subsection (1), the Commissioner may–

 

  • reject the application;

 

  • require the public body or private body to take such steps as may be necessary to bring it into compliance with its obligations pursuant to Part 2;

 

  • require the public body to compensate the complainant for any loss or other detriment suffered; or

 

  • in cases of egregious or wilful failures to comply with an obligation pursuant to Part 2, impose a fine on the public body.

 

(5) The Commissioner shall serve notice of his or her decision, including any rights of appeal, on both the complainant and the public body or private body.

 

  1. Direct implementation of decision.

.(1)       The Commissioner may, after giving a public body an opportunity to provide their views in writing, decide that a public body has failed to comply with an obligation pursuant to Part 2.

 

(2)        In his or her decision made pursuant to subsection (1), the Commissioner may require the public body to take such steps as may be necessary to bring it into compliance with its obligations under Part 3, including by:

 

  • appointing an information officer;

 

  • publishing certain information and categories of information;

 

  • making certain changes to its practices in relation to the keeping, management and destruction of records, and the transfer of records to the National Archives;

 

  • enhancing the provision of training on the right to information for its officials;

 

  • providing the Commissioner with an annual report, in compliance with section 22;

 

  • in cases of egregious or willful failures to comply with an obligation under Part 3, paying a fine.

 

(3)        The Commissioner shall serve notice of his or her decision, including any rights of appeal, on the public body.

 

  1. Commissioner’s power to investigate.

(1) In coming to a decision pursuant to section 43 or 44, the Commissioner shall have the power to conduct a full investigation, including by issuing orders requiring the production of evidence and compelling witnesses to testify.

 

(2)        The Commissioner may, during an investigation conducted pursuant to subsection (1), examine any record to which this Act applies, and no such record may be withheld from the Commissioner on any grounds.

 

  1. Appeal from Commissioner’s decision and orders.

(1)        The complainant, or the relevant public body or private body, may, within 28 days, appeal to the court for a full review of a decision of the Commissioner pursuant to section 43 or 44, or an order pursuant to section 45(1).

 

(2)        In any appeal from a decision made pursuant to section 43, the burden of proof shall be on the public body or private body to show that it acted in accordance with its obligations under Part 2.

 

  1. Binding nature of Commissioner’s decision and orders.

Upon expiry of the 45-day period for appeals pursuant to section 46, the Commissioner may certify in writing to the court any failure to comply with a decision pursuant to section 43 or 44, or an order given pursuant to section 45(1), and the court shall consider such failure under the rules relating to contempt of court.

 

PART 7

WHISTLE-BLOWERS

 

 

 

  1. Whistle-blowers.

(1)        A person shall not be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment, as long as he or she acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

 

(2)        For purposes of subsection (1), wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption, or serious maladministration regarding a public body.

 

PART 8

CRIMINAL AND CIVIL RESPONSIBILITY

 

 

  1. Good faith disclosures.

A person shall not be subjected to civil or criminal action, or any employment detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty in terms of this Act, as long as they acted reasonably and in good faith.

 

  1. Criminal offences.

(1) A person shall not willfully:

 

  • obstruct access to any record contrary to Part 2 of this Act;

 

  • obstruct the performance by a public body of a duty pursuant to Part 3 of this Act;

 

  • interfere with the work of the Commissioner; or

 

  • destroy records without lawful authority.

 

(2)        A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding two years or to both.

 

 

PART 9

MISCELLANEOUS PROVISIONS

 

 

  1. Regulations.

(1)        The Minister may, by notice in the Gazette and after consultation with the Commissioner make Regulations for the purposes of giving effect to the provisions of this Act.

 

(2)        Without prejudice to the generality of the foregoing the Minister may make Regulations particularly for the following:

 

  • to prescribe additional forms of communication of information under section 13(2);

 

  • relating to the training of officials pursuant to section 21;

 

  • relating to reports to the Commissioner pursuant to section 22;

 

  • to prescribe the form of any notice required by this Act; or

 

  • relating to any administrative or procedural matter necessary to give effect to this Act.

 

(3)        Regulations made pursuant to this section shall, before publication in the Gazette, be laid before Parliament

 

 

 

……………………………..

FRANKLIN BRAND

                                                                                                   Speaker

 

 

Passed by the National Assembly this                day of                             , 2015.

 

 

 

……………………………..

JOSÉ LLOYD

                                                                                    Clerk of the National Assembly

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