JFJ: Bring private firms under ATI

Human-rights group Jamaicans for Justice (JFJ) is calling for the Access to Information (ATI) Act to be extended to the private sector, arguing that private entities performing public functions must be subjected to the provisions of the legislation.

The call comes amid the JFJ’s review of the act, examining compliance, legislation and possible pathways to reform.

JFJ is proposing an amendment to the legislation to include a new Section 5A that would make it applicable to the private sector.

Currently, Section 5 of the ATI Act is the application section, which defines specifically which government bodies are covered by the law and which documents individuals making a request have a right to see.

However, JFJ is recommending that the act be amended to include “A person may request information from a private body where: (a) the information is required to exercise or protect a legal right under Jamaican law; or (b) the private body is performing a public function or delivering a service under government contract”.

The group argued that in its current form, Jamaica’s ATI Act, 2002, applies exclusively to public authorities, ministries, statutory bodies, local government, and government-owned companies.

“Citizens have no direct right to request information from private entities, even those performing public functions, receiving public funds, or impacting constitutional rights,” JFJ noted in its 43-page report, released yesterday during a public forum on ‘Enhancing Transparency – Examining the Access to Information Act and its Reform’ at Courtyard by Marriott in New Kingston.

It pointed to private toll road operators, TransJamaican Highway, bauxite miners, Noranda, or subsidised hospitals which, it said, cannot be compelled to release contracts, environmental data or safety reports.

JFJ argued that the only “workaround” is to request information from public regulators, for example, the National Environment and Planning Agency and the Office of Utilities Regulation.

Further, it said responses from regulators are often incomplete, redacted, or delayed due to commercial confidentiality claims or lack of records.

JFJ argued that the public-only scope of the act shields private entities from accountability, leaving citizens unable to access critical data on public-private partnerships, environmental impacts, and the internal policies of private utilities and employers.

The group said Section 5(3)(b) of the act offers a “dormant gateway” to extend the act, noting that the portfolio minister may, by affirmative resolution order, declare that the act applies to “any other body or organisation which provides services of a public nature, which are essential to the welfare of the Jamaican society”.

It said this could cover toll roads, utilities, or mining firms, but said no such order has ever been issued in 22 years.

“The affirmative resolution requirement (positive vote in both Houses) ensures scrutiny but guarantees political inertia, rendering the provision functionally useless,” JFJ said in its report.

It stated that South African and Australian models demonstrate how transparency can be expanded by allowing access to private data when it involves legal rights or the delivery of public services.

Under Section 50 of South Africa’s Promotion of Access to Information Act, any person can request information from private bodies, if needed to exercise or protect a legal right, JFJ noted, with the information regulator issuing binding orders.

Added to that, under Section 6c of Australia’s 1928 Freedom of Information Act, private entities contracted for public services (prisons, job agencies, aged care) are treated as public authorities.

Under the law, citizens access contracts and performance data directly. Disclosure logs (Section 11c) publish released documents within 10 days, while the Office of the Australian Information Commissioner enforces compliance, JFJ noted.

“Jamaica lacks both a rights-based trigger (South Africa) and public-function rule (Australia),” the human-rights group said.

JFJ is calling for, as an immediate primary recommendation, a joint select committee (JSC) on the ATI Act by the end of the first quarter of the calendar year.

The group wants Parliament to establish the committee to review the act, receive submissions from the public, civil society, the ATI Unit, and other stakeholders, and table reform proposals within eight months.

It stated that this step is essential to advance the OGP 2024–2026 National Action Plan (JM0010) milestones, which have experienced delays in prior actions.

The JSC should build on the 2011 report and address current implementation challenges identified in this analysis.

“One of the challenges that we think this will tackle is cross-legislation issues that we’re seeing, in particular with new legislation like the Data Protection Act, which would not have been contemplated at the time that those previous recommendations were made,” said Jade Williams, policy research and advocacy specialist at JFJ.

kimone.francis@gleanerjm.com

10 KEY RECOMMENDATIONS FOR ACTION

Tier 1: High-Priority Legislative Amendments

1. Expand oversight through an independent ATI Commission: Integrate ATI oversight into the Office of the Information Commissioner (OIC) or establish a standalone body with powers to investigate, issue binding directives, and publish compliance reports, leveraging synergies with the Data Protection Act.

2. Introduce a general public interest override - Amend Part III (Sections 14–22) to include a public interest balancing test for most exemptions, mandating disclosure where it outweighs harm (e.g., for corruption or public safety risks). Apply time limits to exemptions and require annual reviews by the OIC.

3. Repeal or restrict ministerial certificates of exemption: Preferred option: Repeal Section 23 in its entirety to eliminate the unreviewable executive veto, aligning with international standards (e.g., South Africa PAIA). Secondary option: Limit to national security with mandatory review and annual parliamentary tabling.

Tier 2: Enforcement and Capacity-Building Reforms (Enhance compliance)

4. Modernise the digital ATI request platform - Develop and launch a centralised online portal by September 30, 2026 (as per OGP NAP), enabling electronic submissions, real-time tracking, and public dashboards on request metrics.

5. Publish annual compliance scorecards - Commencing January 2027, the ATI Unit issues annual scorecards rating agencies on response times, disclosure rates, and proactive publication, with public recognition for top performers and improvement plans for lower performers.

6. Develop policy directives on ATI and data protection harmonisation - By Q2 2027, the OIC issues joint guidelines clarifying when ATI requests prevail over privacy concerns under Data Protection Act Section 30(7), including a public explainer video and training module for officers.

7. Boost proactive disclosure - By December 2026, the ATI Unit and senior leadership across public authorities establish clear standards and metrics for information to be proactively shared on agency websites. Conduct a review to identify and address underlying issues affecting proactive disclosure of research findings or routine information across agencies.

8. Strengthen tribunal operations - By Q2 2026, the Office of the Prime Minister allocates dedicated funding to clear Tribunal backlogs, hire additional staff, and ensure hearings commence within 60 days, with civil society involvement in monitoring outcomes.

Tier 3: Broader Systemic and Educational Reforms (Long-term sustainability)

9. Mandate annual training for ATI officers - By Q3 2026, require annual certification training for all ATI officers and senior decision-makers on request processing, exemptions, public interest tests, and harmonisation with the Data Protection Act, with completion reported in annual ATI submissions to Parliament.

10. Launch a nationwide public education campaign - By Q4 2026, initiate a three-year multimedia campaign (TV/radio PSAs, social media in Patois, community town halls) to educate citizens on ATI rights, request processes, and available remedies, with pre- and post-campaign surveys to measure awareness and usage.