Concerns have been and continue to be expressed about the Constitutional Reform Committee which was established last month. Some of those concerns include what access the Jamaican public will have to the workings of the Committee, via the broadcasting of its meetings and the publication of its minutes, for example. The level and type of public consultation that will take place is also being questioned, particularly as the Minister of Legal & Constitutional Affairs who is co-chair of the Committee, Minister Malahoo-Forte, has said that she plans to table the draft Bill in Parliament next month – in May.
Last week Wednesday (April 19, 2023), the TVJ programme All Angles focused on aspects of the Constitutional Reform Committee and its work. Host Dionne Jackson Miller had as panelists on the programme Minister Malahoo-Forte and Senator Scott-Mottley, a member of the Committee. (Carol Narcisse was also to join the discussion by Zoom, but because of technical difficulties affecting the sound was unable to.)
At one point in the discussion Senator Scott-Mottley referred to a large volume of background documents provided to members of the Committee & on Twitter I suggested that those documents could be shared online with the public.
Along the same lines, earlier this month I had wondered whether the minutes of the Committee meetings would be made public. I am certainly not the only person thinking this should be done.
Last week Thursday (April 20, 2023), I made the following two Access to Information requests to the Ministry of Legal and Constitutional Affairs:
For copies of the background documents mentioned by Senator Scott-Mottley that had been provided to members of the Constitutional committee
For copies of the minutes of all meetings held to date by the Constitutional Reform Committee established in 2023.
On Sunday (April 23, 2023), I received an email response from the Ministry, providing 27 documents –
“See below background documents which were provided to the members of the Constitutional Reform Committee (CRC)…”
– as well as a copy of the Terms of Reference of the Committee.
I also received the following commitment – “Please note that the Minutes are being reviewed and will be shared after they have been confirmed.”
No timeline was given for this, however, so I will wait to see when they are provided and whether there are any redactions.
(As an aside, I must say that this is one of the quickest ATI responses I have ever received.)
I am not seeing the Committee’s background documents posted on the Ministry’s website, which would really be a good idea. In the meantime, I have posted them below and have grouped them for convenience.
Up until the time of publishing this blog post, I have been unable to find copies of the Proclamations and Regulations for the States of Emergency declared on December 6, 2022 online. I have been checking the websites I usually check without success – Office of the Prime Minister, Ministry of Justice and Parliament. I have also checked the Ministry of National Security website, which isn’t a site I usually check for copies of the Gazette.
Yesterday morning (Dec 14), I called the Jamaica Printing Services on Duke Street to ask if I could collect a copy of the gazetted documents and was told to check back in the afternnon, but I wasn’t able to. I called again this morning and was told yes, I could get the copies. So I collected them this afternoon.
In early September 2022, news came that a new and “iconic” sign had been built in Negril.
There was much public discussion about the sign – its design and construction, whether it was a needed or appropriate addition to Negril, whether it would be the tourist attraction it was being promoted as.
The Minister of Tourism, Edmund Bartlett, spoke of the sign’s “creative and aesthetic appeal”, saying it was “artistically and carefully designed”.
Opposition Senator Damion Crawford said it looked like an “old time saving pan”.
A significant issue raised was its cost and whether it was value for money, at J$12 million.
Questions were asked about what contributed to that cost and I reminded that it was possible to get additional information under the Access to Information Act.
On September 12, 2022, I went ahead and made an Access to Information (ATI) request to the Ministry of Tourism and received an acknowledgment of my request from the Director of Documentation, Information and Access Services on the same day.
(The initial email I sent to the Ministry bounced back, so I called and got the correct current contact information and resent the request.)
Today (October 10, 2022) I received a follow up email granting access, with two documents attached:
This was a very straightforward process, which isn’t always the case with ATI requests. I would encourage you to use the ATI Act for getting information, if you haven’t done so before. If you do, I hope your ATI story is as simple as this one.
On Sunday, August 7, 2022, the Office of the Prime Minister (OPM) issued a press release entitled “Jamaica’s Commonwealth Secretary General Campaign Clean, Transparent, Principled” in which it gave information about the cost of the campaign for Commonwealth Secretary General undertaken by Minister Kamina Johnson Smith.
The release is not posted on the OPM website and wasn’t tweeted by the OPM Twitter account. I have posted below a copy of the text:
Often when I read statements released by government entities, I think of Access to Information (ATI) requests that could be made to get more information about the topic being dealt with. Here are some of the requests that could be made based on this release:
Paragraph 2
Documents containing the “already established travel plans and engagements” in place for Minister Johnson Smith prior to the announcement of her candidature (As at January 1, 2022? March 1, 2022?)
Documents containing the budgeted costs for these planned trips and engagements
Documents containing the actual costs for these planned trips and engagements
Paragraph 3
Documents indicating specifically when and where the Minister’s candidature was launched in London in April 2022
Documents indicating the cost of the launch
Documents detailing the “corporate Jamaica” entities that gave assistance for the launch & the nature and value of that assistance
Paragraph 4
Documents indicating the specific dates of each of the 4 engagements mentioned in this paragraph & the dates when they were first added to the Minister’s schedule.
Documents containing the budgeted cost of each of the 4 listed engagements
Documents containing the actual cost of each of the 4 listed engagements
Paragraph 6
Documents setting out the travel schedule undertaken by the Minister covering 7 countries/8 governments in Africa
Documents indicating the cost of (each of) these trips/meetings
Paragraph 7
Documents giving a detailed breakdown of the $18, 267, 575.07 expended on the campaign. (Many of the categories for the breakdown are already suggested in the press release itself. However, actual documents/vouchers/etc from the various ministries & govt agencies can actually be requested under the ATI Act. A consolidated account/report compiled in response to this request isn’t the only way to go, if an applicant wants more detail.)
Paragraph 8
Documents providing details of the expenditure for the Commonwealth Heads of Government Summit in Rwanda of (i) $12, 827,897 by the OPM, (ii) $7,715,585.37 by the Ministry of Foreign Affairs and Trade and (iii) $5,131,386 by the Ministry of Tourism.
Documents providing details of the expenditure by the government for the previous Commonwealth Heads of Government Summit, in the UK in 2018
Paragraph 9
Documents referring to any aspect of the FINN Partners contract with Minister Johnson Smith and/or the services provided by FINN Partners. (This would include any internal memos, emails or any other form of communication.)
Documents providing information about the individuals or entities from “corporate Jamaica” who were party to the arrangement with FINN Partners.
Paragraph 11
Any documents evaluating the ways in which the campaign “served to strengthen bilateral relations and further enhance Jamaica’s reputation on the international stage.”
No one applicant might want to submit all of these possible ATI requests, and there are other requests that are not on this list that another applicant might be interested in submitting. This, however, illustrates that there is a lot of information that this release does not provide and that the ATI Act provides a mechanism by which further, more detailed information can be accessed.
I want to make clear that I am not here questioning Minister Johnson Smith’s qualifications, experience or suitability for the post of Secretary General. I have a lot of respect for her and her abilities.
What I am seeking to do is to point out that even where the government or one of its agencies says that it has been transparent in some regard, there are often many other pieces of information that can be requested for full transparency. To ask for further details is legitimate and the ATI Act provides the means for doing so, if someone wants to request that further information. And that does happen quite naturally in the course of seeking information about a matter…a document that is provided or released may lead to requests for further documents or information.
In a paradigm of open government, which recognises that people have a right to access all the information held by the government, with a few, specific, limited exceptions, it would be troubling for requests for information to be seen as somehow unpatriotic or to be discouraged. If the people are entitled to the information, go ahead and give it. Give as much of it proactively as is possible. Government bodies don’t have to wait on ATI requests to release information that is being asked for publicly. And follow-up questions and requests for additional information should be expected.
I have always liked Section 6(3) of the ATI Act, which says that an applicant for access does not need to give any reason for requesting access. It is an important protection for citizens, as they do not have to justify to the State the reason that they want access to any particular document or piece of information. The State should grant access or deny access in accordance with the Act. The information belongs to the people. It is held in trust by the State for them. They have a right to access it. The State has a duty to provide access.
Flawed as it is, in need of strengthening as it is, the ATI Act is one of the most important pieces of legislation to be passed in Jamaica in the past quarter century, as I repeatedly maintain. And we need to pay close attention to the pending review of the Act to ensure that any amendments to it strengthen, rather than weaken, its provisions.
NIDS Regulations Being Finalised for Public Feedback
The new National Identification System (NIDS) Regulations are being finalised for public discussion, says Minister without Portfolio in the Office of the Prime Minister, Hon. Floyd Green.
“We would love to have our regulations published [for] public feedback sometime next week [August 15-19], and we hope to be able to conclude that process by the end of August,” he said.
The Minister advised that the regulations will be tabled after the House of Representatives resumes sittings in September.
He provided the details while touring the first enrolment centre for the NIDS pilot programme at the Central Sorting Office on South Camp Road in Kingston on Thursday (August 11).
Mr. Green said a series of test runs will be conducted at the facility, development of which is slated for completion in two weeks.
“We [want] our timelines [to be accurate]. We want to ensure that when we tell people it will take them [a certain] time to come in, go through the process and collect the [NIDS] card, we are able to deliver,” he said.
Minister Green also advised that Cabinet has approved the structure of the National Identification and Registration Authority (NIRA).
“Now we’re looking to populate a board. We’ve already gone through a very significant vetting process and have hired a number of people, including our card production manager; so, we’re almost ready to go,” he said.
NIDS is intended to provide a comprehensive and secure structure to enable the collection and storage of identity information.
JIS release, posted on website August 13, 2022
Minister Green is quoted as saying “We would love to have our regulations published [for] public feedback sometime next week [August 15-19], and we hope to be able to conclude that process by the end of August”.
This means the Minister anticipates a two-week period – give or take a few days – for public feedback on the draft regulations governing the implementation and operation of Jamaica’s new National Identification System. That the government can consider two weeks as sufficient time for such feedback signals that they are not serious about a genuine process of public consultation and feedback at all.
Anyone who has worked on regulations that accompany legislation knows that they are often very detailed. It is not uncommon to hear during discussions about new laws, at Joint Select Committee deliberations for example, that some aspect of how the law functions will be dealt with in the regulations. And as the saying goes, the devil is often in the details. The details can be problematic and sufficient time needs to be allowed for members of the public to review and give feedback.
In a two-week period, the government expects interested members of the public – as individuals or organizations – to download the new draft regulations, to read and analyse them, to do any research or have any discussions, to draft written feedback and submit it. Seriously?
And what time will be taken to consider such feedback and make any adjustments to those draft regulations?…When it is intended to table the regulations “after the House of Representatives resumes sittings in September” (JIS release above) and to have “five [pilot enrolment] sites that will be activated across Kingston and St. Andrew by early October.” (JIS release posted August 12, 2022, “First NIDS Registration Centre Opening Soon”.)
In radio interviews back at the end of May 2022, Minister Green said that 4 weeks would be allowed for public feedback, and at the time I queried whether 4 weeks was sufficient, given what would be involved in giving such feedback.
So here we are, two and a half months later, being told that the public will have not 4 weeks but 2 weeks to give feedback.
No, if this is its current timeline, the govenment isn’t serious about this process of public consultation and feedback. That much is clear.
UPDATE: TODAY (JUNE 22, 2022) IT HAS BEEN REPORTED THAT THE WRONG COPY OF THE SOE REGULATIONS WAS TABLED IN PARLIAMENT YESTERDAY. MEMBERS OF PARLIAMENT HAVE BEEN CALLED TO A SPECIAL SITTING OF THE HOUSE TOMORROW FOR THE TABLING OF THE CORRECT REGULATIONS. SO THE REGULATIONS BELOW WILL BE REPLACED WITH THE CORRECT COPY.
(The Gleaner article download posted on blog 25-11-22)
Update – added on November 25, 2022
I am adding a copy of the correct regulations for this State of Emergency, for completion of the record for this blog post. The State of Emergency was not extended beyond the initial 14 days. I have also posted here a link to the PBCJ recording of the sitting of the House of Representatives on June 23, 2022 at which the correct Regulations were tabled and an explanation of the error was given by the Minister of National Security, Horace Chang.
The Emergency Powers (Parish of St Catherine) (No. 2) Regulations, 2022 were tabled in Parliament by Minister of National Security Horace Change this afternoon (June 21, 2022). These are the regulations now governing the State of Emergency declared last Friday, June 17, 2022.
This morning (June 17, 2022), the Constitutional Court handed down its judgment in the matter of Roshaine Clarke v Attorney General of Jamaica, a matter dealing with the constitutionality of parts of the Emergency Powers Regulations, 2018, which governed the State of Public Emergency under which the Claimant had been detained.
Interestingly, hours before the Court handed down its judgment, Prime Minister Andrew Holness announced that a new State of Emergency (SOE) had been declared, for the parish of St Catherine.
A live audio feed from the court was provided.
This is part of a welcome development in which live feeds have been provided in a few cases of great public interest. It would be good for this to happen in many more instances.
The Bank of Jamaica (BOJ) has refused to disclose the cost of financing the controversial upgrade of banknotes scheduled for release later this year.
An Access to Information (ATI) request submitted by The Gleaner for the cost to revamp the notes, first announced in Parliament by Minister of Finance Dr Nigel Clarke, was denied by the central bank.
“The contract relating to the cost of upgrading the banknotes is exempt from disclosure under the Access to Information Act,” the BOJ’s Deputy General Counsel Alvana Johnson said on April 22 in response to the request.
Johnson did not state which provision within the legislation it used to shield the disclosure of the cost.
The cost for the upgrade was determined based on bids submitted, The Gleaner was told, but details of the bids were not disclosed, nor were the names of the bidders.
Additionally, the BOJ, which is charged with the maintenance of the financial system’s stability, would not reveal who was awarded the contract.
Excerpt from Gleaner article, BOJ Mum on Money Price Tag, 5/5/2022
I don’t know the exact wording of the Gleaner’s ATI request but the topic certainly seems to be one that would be of general interest – matters concerning the production and the cost to the country of new bank notes that are to be issued later this year. It doesn’t really matter, however, whether anyone else would be interested in the information an applicant has requested. Just as it doesn’t matter why the information is requested. Section 6(3) of the ATI Act says:
The Gleaner says that BOJ denied its request for information and the ATI Act says – in Section 7(5) – that where that happens, the Govenment entity must give reasons for the denial:
The Gleaner included a quote from the BOJ saying that the relevant contract was exempt under the ATI Act. However the BOJ did not say which Section in the Act it was relying on in order to claim that the contract was exempt.
Part III of the ATI Act deals with exempt documents; it has ten sections with multiple subsections dealing with a number of reasons a document might be considered exempt from disclosure. The reasons are varied and include things such as
the disclosure would prejudice the security, defence or international relations of Jamaica
it is a Cabinet Decision, or other official record of any deliberation of the Cabinet
documents related to law enforcement, the disclosure of which would facilitate the escape of a person from lawful detention
the disclosure would reveal trade secrets
the disclosure would result in destruction of, damage to, or inteference with, the conservation of endangered species of plants or animals.
There are many more.
When a Government entity doesn’t give the reason for its denial of access, it is problematic, as I pointed out in this tweet:
On Friday (May 6, 2022), BOJ responded to the Gleaner article with a notice posted on its website – Cost of Upgraded Banknote Series:
Bank of Jamaica (the Bank) recently concluded a contract with De La Rue, a UK based company, to redesign and print the upgraded banknotes which will be put into circulation towards the end of this year. The Bank acknowledges the valid concerns regarding the provision of information about the cost of the upgraded banknotes. However, we are not able to disclose such information as the terms and conditions of the contract with De La Rue, which include the cost, are subject to a strict confidentiality agreement. In fact, personnel engaged in the procurement process were required to sign non-disclosure agreements prohibiting them from disclosing the settled payment terms. Disclosure would therefore expose the Bank to legal action for a breach of contract. The Access to Information Act exempts the disclosure of information relating to the terms of the Contract as to do so would be an actionable breach of confidence.
The selection of De La Rue as the successful printer was the result of a rigorous procurement process conducted by the Bank with the final recommendation being approved by the Minister of Finance and the Public Service as required by the Bank of Jamaica Act. The procurement process is consistent with the Government’s procurement guidelines. Six reputable banknote printers submitted bids which were assessed by a committee of the Bank’s currency experts. Based on confidentiality of the bidding process, the Bank is unable to divulge information on the other entities.
The cost of printing banknotes over the last three years (2019 – 2021) was approximately USD7.0 million per annum. For the upgraded banknotes, the cost will, initially be higher given (i) the significantly larger quantities to be ordered as the redesigned notes will fully replace the current notes over time, (ii) the new substrate, polymer, that will be used, (iii) enhanced security features to combat counterfeiting and (iv) the new designs for each denomination. However, the polymer substrate used will result in cost savings for the Bank over time as the average useful life of the banknotes will increase by at least 50 percent thereby enabling the Bank to order less banknotes and at a lower frequency in the future.
Bank of Jamaica will provide relevant information regarding the new series of banknotes as part of a comprehensive public education campaign leading up to their introduction into circulation at the end of this year.
BOJ Notice, 6/5/2022
BOJ gave additional information in this notice, including the name of the company that was awarded the contract. It also said more about its reason for denying the Gleaner’s request, though it still did not specifically state the Section of the ATI Act it was relying on to claim an exemption. From its comment that “Disclosure would therefore expose the Bank to legal action for a breach of contract“, one might assume that one of the subsections of Section 17 is being relied on but an applicant ought not to have to make an assumption.
In a response on Twitter, BOJ did refer to Section 17…
…which says this:
The issue of the new bank notes has been of public interest and the subject of discussion since the Finance Minister’s announcement in Parliament two months ago. The Gleaner’s article and the BOJ’s responses have raised more questions, including ones to do with the application of the ATI Act. It will be interesting to see if the Gleaner is satisfied with the BOJ’s responses or whether they will request internal review of the BOJ’s decision or ultimately go to the Appeal Tribunal.
The Bill was read the first and second times and a Select Committee of the House was named; a Select Committee of the Senate is to be named and the two committees will sit jointly to review the new Bill. The MPs named yesterday were:
Delroy Chuck (Chairman), Fayval Williams, Marlene Malahoo Forte, Marsha Smith, Robert Morgan, Dwight Sibblies, Julian Robinson, Hugh Graham and Lothan Cousins.
In his statement about the new Bill to the House, PM Holness didn’t outline a timetable for its passage as he had done in September, but MP Chuck did mention it in his brief comments:
“It is a very important Bill and we certainly would like to use the next two months profitably and hopefully we can debate and have the Bill passed during this fiscal year.”
It is during this short period that the public will have the opportunity to read and analyse the Bill and to give feedback.
Below is the prepared text of the Prime Minister’s statement, which can be checked against the PBCJ recording to hear his additional comments and to hear the comments made by Leader of the Opposition, Mark Golding.
Right Steps & Poui Trees 