Access denied

Nearly seven months ago, one pro-accountability group had questions about expenditures totalling almost $1 billion by two public authorities.

The expenditures by the Kingston and St Andrew Municipal Corporation (KSAMC) and the Department of Correctional Services (DCS) had been flagged by the Government’s chief auditor for a number of governance issues.

Over six fiscal years, both agencies awarded 634 contracts valued at $963 million, but failed to turn over documents that would indicate whether the Government’s procurement rules were followed, the Auditor General Department (AuGD) revealed in its 2019-2020 annual report.

The KSAMC issued 630 roadwork contracts valued at $778 million over six straight fiscal years, ending in 2019-2020, and 89 per cent or 566 were done using the direct or emergency procurement methods, according to the report.

The remaining contracts, valued at $185 million, were awarded by the DCS over two fiscal years, ending in 2017-2018, but the requisite procurement documents or minutes of procurement meetings were not turned over for audit review, the AuGD charged.

Jamaica Accountability Meter Portal (JAMP), citing the findings, turned to the country’s access to information (ATI) law for help to ascertain whether both agencies had addressed the concerns raised by the AuGD.

The ATI law was passed by Parliament in 2002, giving the public access to official documents held by public authorities, subject to a number of exemptions.

Through separate ATI requests dated June 8 and June 10 last year, JAMP asked the KSAMC for a list of all roadwork contracts awarded since the AuGD report was made public in December 2020.

It also requested a breakdown of how many contracts were done using the direct or emergency procurement methodologies.

JAMP, which is co-funded by the European Union, simultaneously fired off a request to the DCS that same period for documents to “substantiate” that the concerns raised by the AuGD regarding the absence of procurement documents, in particular, minutes of procurement meetings, had been remedied.

Just over 240 days later, both agencies have not responded to the requests, said Jeanette Calder, executive director of JAMP.

She acknowledged that JAMP shared some responsibility for the delay by the KSAMC.

The DCS (2) and the Firearm Licensing Authority are also responsible for three other ATI requests that have been outstanding for over 200 days, documents compiled by JAMP have revealed.

The queries to the FLA were in relation to termination benefit payments totalling $8.4 million. JAMP wanted to know who was held accountable for the payments, which exceeded the amount due under their respective employment contract and in breach of a circular published by the finance ministry.

‘MOST EGREGIOUS’

The tardiness of the DCS and FLA, along with the health ministry, were tagged by the pro-accountability group as the “most egregious”.

“It is our responsibility to know whether the Government and the Parliament is really serving us and the only way to know is to pay attention to [AuGD] reports like these and if we are not satisfied, we, the employers, have to ask the questions,” Calder said, underscoring the importance of the law.

“It’s disrespectful to the people of Jamaica and it’s disrespectful of the legislation and represents really bad governance,” she said of the delays.

Robert Hill, chief executive officer of the KSAMC, said the municipal authority was “searching our records to locate these ATI applications” and will ensure that a response is provided to JAMP “in short order”.

“I have also made contact with Miss Jeanette Calder and gave her my commitment to respond to these requests,” he added.

There was no response from the DCS up to late yesterday to questions submitted by The Sunday Gleaner, while calls to Shane Dalling, chief executive officer of the FLA, went answered.

Public bodies are mandated, under Section 7 of the ATI law, to acknowledge receipt of every application, and grant access to the documents requested if they are not exempted. They are also required to respond “as soon as practicable”, but not later than 30 days after the application.

The 30-day response time may be extended for a further 30 days “in any case where there is reasonable cause for such extension”.

The legislation also makes it an offence, punishable by a fine of $500,000 or six months in prison, to alter or deface, block or erase, destroy or conceal documents with the intention of preventing disclosure.

MOST COMMON BREACH

Inordinate delays by government ministries, departments and agencies (MDAs) in their response to ATI requests was the most common breach of the law cited by civil society groups, journalists and citizens.

Flawed interpretation of the law and “unequal application” across different state agencies are among the other issues cited.

It was acknowledged, however, that in a majority of cases MDAs responded to ATI requests in a timely manner. The Houses of Parliament, the Ministry of Finance and the Office of the Prime Minister were among the most efficient, the groups noted.

In total, JAMP submitted 107 ATI requests last year, 90 per cent of which were related to breaches of the law and government policies flagged by the AuGD.

Some 78 requests were fulfilled while 29 went unanswered.

“Of the requests that received no response, nine were not acknowledged in excess of the 30-day limit provided by the legislation…while 20 have been acknowledged,” Calder disclosed.

Human rights group Jamaicans for Justice (JFJ) submitted a total of 217 ATI requests between April and December 2019, and January and October 2020.

Thirty-nine got “absolutely no response”, while 82 were deemed “unfulfilled” because the respective state agencies either failed to follow-up with the information in the stipulated time or indicated that the information was not available, said JFJ’s monitoring, evaluation and research officer, Ornella Kelly.

Ninety-six were considered fulfilled, meaning JFJ got relevant and accurate information, Kelly noted.

“JFJ has made numerous requests to various government bodies under the ATI Act that would have provided greater transparency around issues and events that matter to us,” said the group’s executive director, Mikel Jackson.

“However, despite the formalised process, many agencies withheld or provided heavily redacted information, in contravention of the guidelines of the act.”

Over the last two years, the watchdog Jamaica Environment Trust (JET) submitted 52 ATI requests and said 18 were unfulfilled. An internal review was requested in eight cases.

The others were listed as completed, though that comes with a caveat.

“Some of the completed means that they told us that they don’t have the information available,” said Lauren Creary, programme director at JET.

CLEARER GUIDELINES

The ATI Act took effect in 2004 to reinforce the fundamental principles of governmental accountability, transparency and public participation in decision-making that underpins Jamaica’s constitutional democracy by giving citizens a general right of access to official documents held by public authorities.

A joint select committee of Parliament conducted a comprehensive review of the legislation in 2011 and recommended 18 amendments.

The JFJ executive director believes the time has come for urgent changes to the law that will provide clearer guidelines to ease the “cumbersome” process to request official documents and increase awareness about the rights of citizens.

But minister with responsibility for information Robert Morgan has signaled that amendments to the ATI law are not likely to happen for another year or less.

“I do not expect us to have a new law until probably late 2022-23 because the legislative agenda is very packed. I think that’s a little ambitious, but I think if we push we can get it done,” Morgan said last October.

livern.barrett@gleanerjm.com