Stifling transparency

A government agency is refusing to disclose the names of two entities with which it has entered into contracts costing taxpayers hundreds of millions of dollars, claiming that the Data Protection Act prevents it from doing so.

The situation raises fresh fears of institutional curtailments on public access to basic information and has triggered outrage from transparency campaigners Jamaica Accountability Meter Portal (JAMP) and Jamaicans for Justice (JFJ).

The issue relates to the Auditor General’s Department’s (AuGD) special audit report which revealed in March that the Tax Administration Jamaica (TAJ) spent almost $400 million to lease two buildings that remained unoccupied up to August last year.

Neither the AuGD’s report nor the TAJ’s subsequent statement named the owners of the two properties. Jamaica Labour Party Member of Parliament (MP) Dr Norman Dunn has confirmed that one of his companies leased a St Mary property to the TAJ. The AuGD said there was no evidence that he interfered in the process.

On April 2, The Sunday Gleaner submitted questions to the TAJ, asking for the names of the entities with whom it signed the agreements for the properties – one in St Mary and the other in Greenvale, Manchester.

Two days later, it responded: “TAJ advises that it is unable to provide the information requested as a result of prohibitions to general disclosure pursuant to the provisions of the Data Protection Act.”

In a follow-up email to the public body, which falls under the Ministry of Finance and the Public Service, of which Dr Nigel Clarke is the minister, The Sunday Gleaner asked the TAJ to state the specific provision in the data protection law on which it was relying.

“Concerning the matter at hand, the authority is not in [a]position to comment any further at this time,” it responded.

Given the refusal, on April 8, The Sunday Gleaner submitted a request for the same information under the Access to Information (ATI) Act – a 22-year-old legislation that gives members of the public “a general right of access to official documents held by public authorities”. Copies of the lease agreements were also requested.

A response is being awaited.

‘MUST BE NIPPED IN THE BUD’

The Data Protection Act was passed in 2020 but took effect in December 2023. It aims “to secure the confidentiality of personal data which may be in the possession of entities (including Government authorities) and to provide for the rights of individuals in relation to their personal data in the possession of those entities”.

The data protection law does, however, include provisions that cover the disclosure of personal data that entities are obliged to release under the Access to Information Act or other legislation.

The disclosure of names of entities awarded government contracts is a standard practice and even a requirement in Government, with such announcements made at post-Cabinet press briefings and published by some state agencies, including the Public Procurement Commission.

That is partly the reason why lobby groups JAMP and JFJ have expressed surprise at the TAJ’s decision.

The denial of access without clearly stating the legal grounds “should not go unchallenged”, argued JAMP Executive Director Jeanette Calder. “It must be nipped in the bud.”

“When the Tax Administration Jamaica blocks the path to access this information, it is blocking the media from scrutinising the actions, spending and decisions of public officials. Going this route not only breeds secrecy, suspicion, distrust and cynicism, but it is an attack on a functioning democracy as information is the oxygen of a democracy,” she said.

Calder said the situation “needs nothing less than the attention of the Ministry of Finance that oversees the TAJ and the Office of the Prime Minister that is entrusted with protecting the administration of the ATI Act”.

DON’T SEE HOW IT APPLIES

JFJ said the issue has to be viewed from the constitutional right Jamaicans have to seek and receive information from any public entity.

TAJ may have engaged in a “misapplication” of the Data Protection law, which is “there to protect personal data” and to “ensure record-keeping of personal information” such as biometric data, argued the group’s executive director, Mickel Jackson. “I can’t see how it would apply in this particular context.”

Jackson added: “What should be very clear is that the Access to Information Act exists to provide access to the public to information such as these and that has to be paramount.”

In December 2020, Parliament’s Ethics Committee granted an exemption to MP Dunn concerning three companies in which he is a director – Noraldu Limited, the one likely involved in the TAJ lease, Medpro Jamaica Limited, and Supermed Hardware, the Integrity Commission reported in its 2020-2021 annual report.

“These companies may from time to time enter into contracts with the Government of Jamaica and its affiliated agencies,” the report said.

An MP can be ousted from Parliament for not declaring their interest in the government contract.

Noraldu is listed as the owner of a property on Main Street in Annotto Bay, which it bought from the National Commercial Bank Jamaica.

The land title shows that the property was transferred to Noraldu in June 2021 for a consideration of $70 million, an amount which also covered another property. A $60-million mortgage to NCB was also registered.

Dunn declined to discuss the matter with The Sunday Gleaner beyond confirming that one of his companies was the property owner cited in the AuGD’s report.

 

 

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Long-outstanding review of Access to Information Act necessary

General public access to contracts awarded by government entities has taken a hit with the Integrity Commission Act, 2017, the law that established Jamaica’s principal anti-corruption agency, the Integrity Commission, that came into operation in 2018.

The IC’s predecessor, the Office of the Contractor General, from 2006 required public bodies to submit quarterly reports of contracts above a certain value.

Those reports would be compiled and published. The information included the names of procuring entities, winning contractors, the value of contracts, and the procurement methodology used.

The practice continued in the early days of the IC, but by late 2020, it stopped publishing the reports, a move linked to Section 56 of the IC Act that imposes secrecy on its handling of certain information.

“Every person having an official duty under this act, or being employed or otherwise concerned in the administration of this act (hereinafter called a concerned person) shall regard and deal with as secret and confidential, all information, statutory declarations, government contracts, prescribed licences, and all other matters relating to any matter before the commission … ,” the section reads.

‘NO OBLIGATION TO SHARE’

This latest issue with the TAJ comes amid other public access questions facing the Government.

There is a debate over House Speaker Juliet Holness’ refusal to disclose an opinion Parliament received from the Attorney General’s Chambers on how reports from the IC and the AuGD should be treated.

Holness ruled last year that some AuGD reports will have to wait two months to allow responsible Cabinet ministers to comment, while some from the IC would go to a committee before being tabled.

Lawyers, civil society groups and the opposition People’s National Party have criticised the decision as delaying the public’s access to information as well as stepping outside of her authority as a speaker.

The AG’s Chambers has also denied a Gleaner ATI request for the document, citing lawyer-client privilege.

“We are therefore unable to grant access to the official document as the privilege is not ours to waive,” said Solicitor General Marlene Aldred, directing queries to the Speaker, who requested the advice.

Asked Wednesday whether the government would encourage Speaker Holness to release the document, minister in charge of information, Robert Morgan, said he was a member of the executive and did not want to interfere in the operations of another arm of government.

Last November in Parliament, Morgan argued that Holness was under no obligation to share what he said was the “opinion of the attorney general to the Government” with the Opposition. “You may do it because of your good nature, but you have no such obligation.”

The issue has also raised new concerns about the long-outstanding review of the Access to Information Act to strengthen the legislation.

JFJ’s head said the pace needs to be quickened.

‘TOP OF CABINET’S AGENDA’

In October 2021, Morgan said the Government was committed to fast-tracking the review of the act. He said then that the information ministry was “awaiting comments from the Attorney General’s Chambers on a Cabinet submission with respect to this review”.

Morgan said the matter was still with the Attorney General’s Chambers when asked for an update last Wednesday.

“ ... They’re supposed to respond to us after they complete that process then we’ll have another joint select committee at which time the law will be updated. I cannot, obviously, tell you the timeline that the AG’s department will take to review the submission that they currently have. But from our side, the policy side, we have done what we’re supposed to,” he told journalists.

Pressed on whether there is any urgency to pursue the reforms, he said the Government is “very interested in getting this executed as quickly as possible”.

“I think that there was an update after 2021 based on concerns raised by members of civil society and others. So, it wasn’t the same one, there was an update to the one that was there. I will assure you that this matter is at the top of Cabinet’s agenda,” he said.

jovan.johnson@gleanerjm.com