Unauthorized Disclosure of Official Information Bill, 2023

No. … of 2023 Unauthorized Disclosure of Saint Christopher Official Information Bill, 2023 and Nevis

Arrangement of Sections.

Section

1. Short title and commencement.

2. Interpretation.

3. National Security.

4. Defence.

5. International relations.

6. Crime and special investigation powers.

7. Other unauthorized disclosures.

8. Information resulting from unauthorised disclosures or entrusted in confidence. 9. Information entrusted in confidence to other States or international organizations. 10. Authorised disclosures.

11. Safeguarding of information.

12. Penalties.

13. Regulations.

No. … of 2023 Unauthorized Disclosure of Saint Christopher Official Information Bill, 2023 and Nevis

SAINT CHRISTOPHER AND NEVIS

No. … of 2023

A BILL to deter and create penalties for unauthorized disclosure of official government information by public servants and contractors of the government.

BE IT ENACTED by the King’s Most Excellent Majesty, by and with the advice and consent of the National Assembly of Saint Christopher and Nevis and by the authority of the same as follows:

PART I

PRELIMINARY

1. Short title and commencement.

(1) This Act may be cited as the Unauthorized Disclosure of Official Information Act, 2023.

(2) This Act shall come into force on a day to be fixed by the Minister by Order published in the official Gazette.

2. Interpretation.

In this Act, unless the context otherwise requires—

“authorized person” has the meaning assigned to it by section 2 of the Whistleblowers Protection Act, 2023;

“disclose” and “disclosure”—

(a) includes, in relation to a document or other article, parting with possession of it; (b) excludes protected disclosures made to a Disclosure Receiving Authority; and (c) excludes information disclosed pursuant to the Freedom of Information Act, 2018;

“Government” means the Federal Government of Saint Christopher and Nevis and the Nevis Island Administration;

“Minister” means the Minister responsible for Justice and Legal Affairs;

“protected disclosure” means a disclosure made in good faith relating to corrupt conduct or improper conduct;

No. … of 2023 Unauthorized Disclosure of Saint Christopher Official Information Bill, 2023 and Nevis

“public contractor” means any person who is not a public officer but who provides, or is employed in the provision of, goods or services to the Government or a Statutory Corporation;

“public officer” has the meaning assigned to it by section 2(1) of the Anti-Corruption Act, 2023;

“State” includes the government of a State and any organ of its government and references to a State other than Saint Christopher and Nevis include references to any territory outside of Saint Christopher and Nevis.

3. Unauthoized disclosure prohibited

Notwithstanding the provisions of the

(a) the Freedom of Information Act;

(b) the Whistleblower Act; or

a person is prohibited from disclosing any information, document or article, the disclosure of which would result in the commission of an offence under this Act, an act which would be prejudicial to the national security of Saint Christopher and Nevis or an act which would significantly affect the administration of justice.

4. Disclosure of related to matters of national security

(1) A person who is or has been—

(a) a member of the security and intelligence services of the Government; or

(b) a person notified that he or she is subject to the provisions of this subsection, while the notification is in force

commits an offence if without lawful authority he or she discloses any information, document or other article relating to security or intelligence which is or has been in his or her possession by virtue of his position as a member of any of those services or in the course of his or her work.

(2) The reference in subsection (1) to the disclosure of information relating to security or intelligence [national security] includes

(a) the making of any statement which purports to be a disclosure of such information; or (b) information intended to be taken by those to whom it is addressed as being such a disclosure.

(3) A person who is or has been a public officer or public contractor commits an offence if without lawful authority he or she makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his or her possession by virtue of his or her position.

(4) For the purposes of subsection (3), a disclosure is damaging if—

(a) it causes damage to the work of, or of any part of, the national security services of Saint Christopher and Nevis; or

(b) it is the type of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.

(5) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he or she did not know, and had no reasonable cause to believe, that the information, document or article in question related to security or intelligence or, in the case of an offence under subsection (3), that the disclosure would be damaging within the meaning of that subsection.

(6) Notification that a person is subject to subsection (1) shall be effected by a notice in writing served on him by the Minister of Government; and such a notice may be served if, in the Minister’s opinion, the work undertaken by the person in question is or includes work connected with the national security or other security and intelligence services and its nature is such that the interests of national security require that he or she should be subject to the provisions of that subsection.

(7) Subject to subsection (8), a notification for the purposes of subsection (1) shall be in force for the period stated in the notice.

(8) A notification for the purposes of subsection (1) may at any time be revoked by a further notice in writing served by the Minister on the person concerned; and the Minister shall serve such a further notice as soon as, in his or her opinion, the work undertaken by that person ceases to be such as is mentioned in subsection (6).

(9) In this section “national security” means the work of, or in support of, the Ministry responsible for national security, or other security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them.

5. Defence for disclosure or security and intelligence infomation

(1) A person who is or has been a public officer or public contractor commits an offence if without lawful authority he or she makes a damaging disclosure of any information, document or other article relating to defence which is or has been in his or her possession by virtue of his position.

No. … of 2023 Unauthorized Disclosure of Saint Christopher Official Information Bill, 2023 and Nevis

(2) For the purposes of subsection (1), a disclosure is damaging if—

(a) it damages the capability of, or any part of, the armed forces of the Government to carry out their tasks or leads to loss of life or injury to members of those forces or serious damage to the equipment or installations of those forces; or

(b) otherwise than as mentioned in paragraph (a), it endangers the interests of Saint Christopher and Nevis abroad, seriously obstructs the promotion or protection by Saint Christopher and Nevis of those interests or endangers the safety of citizens of Saint Christopher and Nevis who are abroad; or

(c) it is the type of information or document or article which is such that its unauthorised disclosure would be likely to have any of those effects.

(3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he or she did not know, and had no reasonable cause to believe, that the information, document or article in question related to defence or that its disclosure would be damaging within the meaning of subsection (1).

(4) In this section “defence” means—

(a) the size, shape, organisation, logistics, order of battle, deployment, operations, state of readiness and training of the armed forces of the Government;

(b) the weapons, stores or other equipment of those forces and the invention, development, production and operation of such equipment and research relating to it;

(d) plans and measures for the maintenance of essential supplies and services that are or would be needed in time of war.

6. International relations.

(1) A person who is or has been a public officer or public contractor commits an offence if without lawful authority he or she makes a damaging disclosure of—

(a) any information, document or other article relating to international relations; or

(b) any confidential information, document or other article which was obtained from a State other than Saint Christopher and Nevis or an international organisation,

being information or a document or article which is or has been in his or her possession by virtue of his or her position as a public officer or public contractor.

(2) For the purposes of subsection (1), a disclosure is damaging if—

(a) it endangers the interests of Saint Christopher and Nevis abroad, seriously obstructs the promotion or protection by Saint Christopher and Nevis of those interests or endangers the safety of citizens of Saint Christopher and Nevis who are abroad; or

(b) it is the type of information or document or article which is such that its unauthorised disclosure would be likely to have any of the effects referred to in paragraph (a).

(3) In the case of information or a document or article within subsection (1)(b)— (a) the fact that it is confidential, or

(b) its nature or contents,

may be sufficient to establish for the purposes of subsection (2)(b) that the information, document or article is such that its unauthorised disclosure would be likely to have any of the effects there mentioned.

(4) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he or she did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) or that its disclosure would be damaging within the meaning of that subsection.

(5) For the purposes of this section any information, document or article obtained from a State or organisation is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State or organisation to expect that it would be so held.

7. Crime and special investigation powers.

(1) A person who is or has been a public officer or public contractor commits an offence if without lawful authority he or she discloses any information, document or other article to which this section applies and which is or has been in his or her possession by virtue of his or her position.

(2) This section applies to any information, document or other article—

(a) the disclosure of which—

(i) results in the commission of an offence; or

(ii) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or

(iii) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or

(b) which is such that its unauthorised disclosure would be likely to have any of those effects.

(3) It is a defence for a person charged with an offence under this section in respect of a disclosure falling within subsection (2)(a) to prove that at the time of the alleged offence he or she did not know, and had no reasonable cause to believe, that the disclosure would have any of the effects there mentioned.

(4) It is a defence for a person charged with an offence under this section in respect of any other disclosure to prove that at the time of the alleged offence he or she did not know, and had no reasonable cause to believe, that the information, document or article in question was information or a document or article to which this section applies.

(5) In this section “legal custody” includes detention in pursuance of any enactment or any instrument made under an enactment.

8. Other unauthorized disclosures.

(a) confidential Government communications;

(b) prejudicial commercial communications;

(d) information related to sustainable development; or

(e) Government or Statutory Corporation policy making.

which is or has been in his possession by virtue of his position.

(2) Other than an official Cabinet publication, for the purposes of subsection (1)(a), a disclosure is damaging if it contains or references—

(a) the official record of any deliberation or decision of Cabinet;

(b) information that has been prepared by a Minister of Government or on his behalf or by a public officer for the purpose of submission for consideration by Cabinet or a document which has been considered by Cabinet and which is related to issues that are or have been before Cabinet;

(c) information prepared for the purpose of briefing a Minister of Government in relation to issues to be considered by Cabinet;

(d) information about a Cabinet Submission or other Cabinet communication; (e) information about a confidential Ministerial communication;

(f) information about a confidential communication with His Majesty or the Governor General; or

(g) information about a confidential intra-Government or intra-Statutory Corporation memoranda or letter.

(3) For the purposes of subsection (1)(b) a disclosure is damaging if—

(a) the information was obtained from a third party and to communicate it would constitute an actionable breach of confidence; or

(b) the information was obtained in confidence from a third party and—

(i) it contains a trade secret; or

(ii) to communicate it would, or would be likely to, seriously prejudice the commercial or financial interests of that third party; or

(4) For the purposes of subsection (1)(c) a disclosure is damaging if it contains— (a) information likely to endanger the life, health or safety of any person; or (b) information from, regarding or concerning medical files.

(5) For the purposes of subsection (1)(d) a disclosure is damaging if it contains—

(a) information likely to cause serious prejudice to the ability of the Government to manage the economy of Saint Christopher and Nevis;

(b) information likely to cause serious prejudice to the legitimate commercial or financial interests of a Statutory Corporation; or

(6) For the purposes of subsection (1)(e) a disclosure is damaging if it contains—

(a) information likely to cause serious prejudice to the effective formulation or development of Government or Statutory Corporation policy;

(b) information likely to seriously frustrate the success of a Government or Statutory Corporation policy, by premature disclosure of that policy;

(c) information likely to significantly undermine the deliberative process of the Government or a Statutory Corporation by inhibiting the free and frank provision of advice or exchange of views; or

(d) information likely to significantly undermine the effectiveness of a testing or auditing procedure used by the Government or a Statutory Corporation policy.

(7) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question related to defence or that its disclosure would be damaging within the meaning of subsection (1).

9. Information resulting from unauthorised disclosures or entrusted in confidence. (1) Subsection (2) applies where—

(a) any information, document or other article protected against disclosure by the foregoing provisions of this Act has come into a person’s possession as a result of having been—

(i) disclosed (whether to him or another) by a public officer or public contractor without lawful authority; or

(ii) entrusted to him by a public officer or public contractor on terms requiring it to be held in confidence or in circumstances in which the Government servant or government contractor could reasonably expect that it would be so held; or

(iii) disclosed (whether to him or another) without lawful authority by a person to whom it was entrusted as mentioned in sub-paragraph (ii); and

(b) the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of those provisions.

(2) Subject to subsections (3) and (4), the person into whose possession the information, document or article has come commits an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1).

(3) In the case of information or a document or article protected against disclosure by sections 1 to 3, a person does not commit an offence under subsection (2) unless—

(a) the disclosure by him is damaging; and

(b) he makes it knowing, or having reasonable cause to believe, that it would be damaging;

and the question whether a disclosure is damaging shall be determined for the purposes of this subsection as it would be in relation to a disclosure of that information, document or article by a Crown servant in contravention of section 1(3), 2(1) or 3(1).

(4) A person does not commit an offence under subsection (2) in respect of information or a document or other article which has come into his possession as a result of having been disclosed—

(a) as mentioned in subsection (1)(a)(i) by a public contractor; or

(b) as mentioned in subsection (1)(a)(iii),

unless that disclosure was by a citizen of Saint Christopher and Nevis or took place in Saint Christopher and Nevis.

(5) For the purposes of this section information or a document or article is protected against disclosure by the foregoing provisions of this Act if—

(a) it relates to security or intelligence, defence or international relations within the meaning of section 1, 2 or 3 or is such as is mentioned in section 3(1) (b); or

(b) it is information or a document or article to which section 4 applies;

and information or a document or article is protected against disclosure by sections 1 to 3 if it falls within paragraph (a).

10. Information entrusted in confidence to other States or international organisations.

(1) This section applies where—

(a) any information, document or other article which—

(i) relates to security or intelligence, defence or international relations; and

(ii) has been communicated in confidence by or on behalf of Saint Christopher and Nevis to another State or to an international organisation,

has come into a person’s possession as a result of having been disclosed (whether to him or another) without the authority of that State or organisation or, in the case of an organisation, of a member of it; and

(b) the disclosure without lawful authority of the information, document or article by the person into whose possession it has come is not an offence under any of the foregoing provisions of this Act.

(2) Subject to subsection (3), the person into whose possession the information, document or article has come commits an offence if he makes a damaging disclosure of it knowing, or having reasonable cause to believe, that it is such as is mentioned in subsection (1), that it has come into his possession in the manner referred to in subsection (1) and that its disclosure would be damaging.

(3) A person does not commit an offence under subsection (2) if the information, document or article is disclosed by him with lawful authority or has previously been made available to the public with the authority of the State or organisation concerned or, in the case of an organisation, of a member of it.

(4) For the purposes of this section “national security”, “defence” and “international relations” have the same meaning as in sections 1, 2 and 3 and the question whether a disclosure is damaging shall be determined as it would be in relation to a disclosure of the information, document or article in question by a Crown servant in contravention of section 1(3), 2(1) and 3(1).

(5) For the purposes of this section information or a document or article is communicated in confidence if it is communicated on terms requiring it to be held in confidence or in circumstances in which the person communicating it could reasonably expect that it would be so held.

11. Authorised disclosures.

(1) For the purposes of this Act a disclosure by—

(a) a public officer; or

(b) a person, not being a public officer or public contractor, in whose case a notification for the purposes of section 1(1) is in force, is made with lawful authority if it is made in accordance with his official duty.

(2) For the purposes of this Act a disclosure by a public contractor is made with lawful authority if it is made—

(a) in accordance with an official authorisation; or

(b) for the purposes of the functions by virtue of which he is a public contractor and without contravening an official restriction.

(3) For the purposes of this Act a disclosure made by any other person is made with lawful authority if it is made—

(a) to a public officer for the purposes of his functions as such; or

(b) in accordance with an official authorisation.

(4) It is a defence for a person charged with an offence under any of the foregoing provisions of this Act to prove that at the time of the alleged offence he believed that he had lawful authority to make the disclosure in question and had no reasonable cause to believe otherwise.

(5) In this section “official authorisation” and “official restriction” mean, subject to subsection (6) below, an authorisation or restriction duly given or imposed by a public officer or public contractor or by or on behalf of a prescribed body or a body of a prescribed class.

(6) In relation to section 6 “official authorisation” includes an authorisation duly given by or on behalf of the State or organisation concerned or, in the case of an organisation, a member of it.

12. Safeguarding of information.

(1) Where a public officer or public contractor, by virtue of his or her position as such, has in his or her possession or under his control any document or other article which it would be an offence under any of the foregoing provisions of this Act for him to disclose without lawful authority he or she commits an offence if—

(a) being a public officer, he or she retains the document or article contrary to his or her official duty; or

(b) being a government contractor, he or she fails to comply with an official direction for the return or disposal of the document or article,

or if he fails to take such care to prevent the unauthorised disclosure of the document or article as a person in his position may reasonably be expected to take.

(2) It is a defence for a Crown servant charged with an offence under subsection (1)(a) to prove that at the time of the alleged offence he believed that he was acting in accordance with his official duty and had no reasonable cause to believe otherwise.

(3) In subsections (1) and (2) references to a public officer include any person, not being a public officer or public contractor, in whose case a notification for the purposes of section 1(1) is in force.

(4) Where a person has in his possession or under his control any document or other article which it would be an offence under section 5 for him to disclose without lawful authority, he or she commits an offence if—

(a) he fails to comply with an official direction for its return or disposal; or

(b) where he obtained it from a public officer or public contractor on terms requiring it to be held in confidence or in circumstances in which that servant or contractor could reasonably expect that it would be so held, he fails to take such care to prevent its unauthorised disclosure as a person in his position may reasonably be expected to take.

(5) Where a person has in his possession or under his control any document or other article which it would be an offence under section 6 for him to disclose without lawful authority, he or she commits an offence if he or she fails to comply with an official direction for its return or disposal.

(6) A person commits an offence if he discloses any official information, document or other article which can be used for the purpose of obtaining access to any information, document or other article protected against disclosure by the foregoing provisions of this Act and the circumstances in which it is disclosed are such that it would be reasonable to expect that it might be used for that purpose without authority.

(7) For the purposes of subsection (6) a person discloses information or a document or article which is official if—

(a) he has or has had it in his possession by virtue of his position as a public officer or public contractor; or

(b) he knows or has reasonable cause to believe that a public officer or public contractor has or has had it in his possession by virtue of his position as such.

(8) Subsection (5) of section 6 applies mutatis mutandis for the purposes of subsection (6).

(9) In this section “official direction” means a direction duly given by a public officer or public contractor or by or on behalf of a prescribed body or a body of a prescribed class.

13. Penalties.

(1) A person who commits an offence under any provision of this Act other than section 10(1), (4) or (5) shall be liable—

(a) on summary conviction, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding six months or to both; or

(b) on conviction on indictment, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding two years or to both.

(2) A person who commits an offence under section 10(1), (4) or (5) shall be liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding three months or to both.

14. Regulations.

The Minister may make regulations for the purpose of giving effect to the provisions of this Act.

……………………………….

Lanein Blanchette

Speaker

Passed by the National Assembly this day of , 2023.

…………………………………..

Trevlyn Stapleton

Clerk of the National Assembly

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Unauthorized Disclosure of Official Information Bill, 2023

Unauthorized Disclosure of Official Information Bill, 2023

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