Written for the November 26, 2021, issue of Penguin News. Printed under the headline “Sweeping regulations in place to withhold Government information”.

Freedom of Information takes a different shape in the Falkland Islands to many countries, and is represented by a piece of legislation - the Access to Information Code of Practice - where across Europe and in the United States, for example, there is a statutory right to access information that does not exist here. As a result residents’ access to information, in our opinion, is more restricted.

This opinion was formed while following up a story in the November 19 issue headlined “Former PC tells of unnecessary use of force by senior officer.”

PN sought to make a freedom of information request for the body camera footage to provide an objective view of the incident, but was told there was no Freedom of Information Act in place in the Falklands, and the newspaper would not be provided with the footage. PN has since made an Access to Information request but, as of the time of publishing, have not received a response.

It was also noted by PN that the Code of Practice was not available on the Legislative Assembly website and was thus largely inaccessible to the public or interested individuals without prior knowledge of the code. Through contact with the Attorney General’s Chambers and Gilbert House this was found to be an error, as the code was intended to be approved for publishing in 2016, which did not occur. PN was informed Gilbert House was seeking the permissions required to publish the ExCo paper 60/16 from the meeting on March 22, 2016.

Under the Access to Information Code of Practice there is guidance on what information FIG will give access to, such as access for individuals about themselves, information about policy making, information about decisions, information about services and how they run, and other information FIG holds relating to the business of government in response to a request. Each of these conditions are subject to exemptions included in the code.

Exemptions in the Code of Practice are up to the interpretation of the Legal and Regulatory Service, and are broken down into the same 16 categories of exempt information used in the Committees (Public Access) Ordinance.

These include the areas: confidential information; national security; international relations; economic interests; enforcement activities; information about individuals, children, and others financial and business affairs; labour relations; legal advice; FIG contemplated action; identity of a protected informant; draft papers for ExCo; and internal audit reports and budgetary information.

Each of these categories includes more specific terms for what is exempt.

Also included in the code of practice is guidance in “categorising requests as vexatious” - which includes indicators such as abusive or aggressive language, burden on FIG, personal grudges, unreasonable persistence, intransigence, frequent or overlapping complaints, deliberate intention to cause annoyance, scattergun approach, disproportionate effort and frivolous requests.

Attorney General, Simon Young, told Penguin News the Code of Practice covers areas which would be covered by three pieces of legislation elsewhere, such as the UK. These are: data protection (information about yourself), freedom of information (about others and other matters) and freedom of information specifically relating to environmental matters. These areas are all covered by the FIG Access to Information code.

Mr Young explained one of the differences between the Falklands and England, for example, is that the Freedom of Information Act is supported by an independent Information Commissioner who “essentially polices that independently of the authorities who are receiving the requests and responding to the requests.”

This role is fulfilled by the Legal & Regulatory Department of the Falklands, who also make use of the information commissioners guidance on interpretation of exemptions.

In the UK the role of the Information Commissioner is also to take enforcement action against authorities who fail to comply, the Attorney General explained.

“Obviously here we don’t have a statutory regime so we don’t have any of those mechanisms in place,” Mr Young said. “Because it is a policy, it’s a policy that could be changed much more easily than if it was a piece of legislation.”

On the concerns of Penguin News that many of the exemptions seem to be somewhat sweeping terms which could be used to render any information exempt, Mr Young said “You’ve got to look at it in context. It is an access to information [code]. The main policy is: We should be providing information. So there needs to be a good reason why we’re not providing that information.”

Mr Young said he looks at and relies upon the information commissioner’s office guidance, “because that gives a lot of guidance on these areas.”

Regarding the categorization of vexatious requests Mr Young said that, “making requests specifically to try and tie up authorities in spending a whole load of time on providing information, then you might say this is vexatious.”

He added “something more than just a request having been made, there needs to be something else in the context that makes it vexatious, so you really know that it’s mischief making.”

On whether the Code of Practice makes provisions for journalists to access information where there has been alleged misconduct, he said “Is it specifically covered? It might not be. If you were talking about information around a particular criminal investigation there are very clear exemptions from the Freedom of Information Act in England.

“You simply would not be provided with any information in relation to that. There would have to be an absolutely overwhelming public interest.”

Mr Young added, “Obviously there are mechanisms for if an employee of government isn’t happy with matters, there are mechanisms for people to complain and challenge decisions. Internally that is all there.”

Penguin News also found that the Code of Practice was due for review in 2018 but this did not occur during the change of the Central Services Directorate into Commercial Services.

Nicholas Roberts