Transparent government

POSTED: 04/28/14 10:48 PM

The Landsverordening Openbaarheid van Bestuur, the National Ordinance Public Administration, offers citizens the right to demand information from the government apparatus. Those who are familiar with this piece of legislation, and who have maybe used it, are most likely familiar with its intricacies. They must also be aware that, when push comes to shove, the government usually finds a reason not to provide the requested information.

The government, confronted with a request for information based on this ordinance, has three weeks to respond. The ordinance gives the government a one-time option for a 3-week extension. So in theory, citizens should receive their information the latest after six weeks. It looks good on paper, but the reality is usually different. We know: this newspaper filed a request for information about a report from the National Detective Agency exactly a year ago. We are still waiting for an answer. Earlier requests for other information also hit a blank wall.

On June 9, 2009, Today requested information about the new government administration building. Because there were (and are) a lot of rumors about malversation surrounding this building, Today asked for “copies of all decisions taken by the Executive Council of the Island Territory of St. Maarten during the period January 1, 2003 until June 8, 2009 with regard to the planning and construction” of the project.

On July 6, the government responded with a letter announcing a delay. The reply came finally on September 2, well after the maximum term of six weeks counting from June 9 – but according to Caribbean standards quite reasonable.

However, the letter of September 2, 2009, contained a refusal to provide the information because the text of the Exco-decision “consists partly of information for which an exemption applies based on articles 11 and 12 of the Landsverordening Openbaarheid van  Bestuur,” the Executive Council wrote to this newspaper.

It never became clear what the real reason was to refuse the information. Article 11 of the ordinance is quite broad. It states for instance that a request will be denied if doing so would endanger the unity of the government, damage the security of the country, or when the information refers to company or production data that have been provided to the government in confidence.

Other reasons to refuse are when giving information would not outweigh the country’s economic interests, those of tracking and prosecuting criminal facts, the inspection, control or supervision by government bodies, respect for privacy or the interest that addressee has to be able to obtain the information first.

That is not all: article 12 rules that no information from internal consultation will be released that concerns policies that could be traced to individuals.

So there are quite some exceptions that could stand in the way of obtaining information the government prefers to keep under wraps. This was the fate of the Exco-decisions about the government administration building.

In the letter dated September 2, 2009, the Executive Council made a gesture: “To meet your wishes as much as possible we have decided to have a compilation made of the summarized Exco-decisions.”

The government wanted to charge 20 guilders per hour for this service; the total bill for Today would come to 440 guilders.

The next day we sent a letter in which we politely declined the offer. Instead, we asked for an overview of all the decisions that could not be released and the reason why this was so.

Already on June 17 2010 (!) the Executive Council responded with another refusal. It was a bad interpretation of our request, and it basically referred back to the letter of September 2, 2009.

Our prime minister has made a point of transparency and accountability lately. A step in the right direction – after this newspaper asked to make the National Gazette available in local supermarkets – was to make the Gazette available online. Vromi-Minister Maurice Lake also uses the word transparency every other sentence, so it seems that there is a new wind blowing through the corridors of power. But is it really? Let us examine a more recent example, the attempt by citizens Oldain Hodge to obtain information about the real estate the government leases from third parties.

Hodge submitted his request on December 19, 2013, and repeated it on January 5 of this year. Already on January 30 (!), 42 days or exactly six weeks after the first letter the Ministry of Finance confirmed that it had received the letter. On April 1 – no joke – the ministry sent its decision to citizen Hodge – that’s 102 days, or almost fifteen weeks after he first filed his request.

One would think – wow, the ministry has put some deep thought into this request and Hodge is sure to receive the information he was looking for. Hodge wanted “all information about the lease of buildings and terrains from third parties” and he provided an exhaustive list with specifications. He also asked for an overview of arrears in lease payments, and about the total monthly charges for the lease of all properties.

It is an interesting request, especially seen in the light of the everlasting saga with the new government administration building on Pond Island. One could easily suspect that the government is not moving in to protect the interest of the property owners that are currently lining their pockets with regular lease payments from the buildings the government has in use in the private market.

The ministry points out to Hodge that the high Councils of State – the Ombudsman, the Social Economic Council, the Council of Advice and the Parliament – do not fall under the scope of the ordinance on public administration. Independent administrative bodies like the pension fund APS and the SZV – are also exempt. So the request for information about the buildings used by these organizations went nowhere. We’re able to help Hodge out with the parliament building, because that rent has been widely discussed and published in 2010: 94,688 guilders per month, or 1,136,260 guilders ($634,782) per year.

Article 5 of the ordinance contains a consideration about information that concerns third parties (like the owners of real estate leased to the state). The article says that the government has to consider whether those third parties are not “disproportionally severely affected” if it provides the requested information. The ordinance’s explanatory notes even recommend, in case there is any doubt, to consult with those third parties and ask them what they think about making the information public. We assume that a third party that owns an inflated lease-contract will always tell the government to keep the lid on their contracts. The question is of course what is more important: the sanctity of information in a contract between two parties, or the public interest in knowing how the government is spending its tax dollars.

In Hodge’s case, the finance ministry did not consult with any third party, “because the information that will be provided will not disproportionally affect third parties.”

Finance Minister Hassink wrote to Hodge that he would provide a spreadsheet with the monthly lease-payments per ministry but that he will not give specific information per building. And there is another catch: Hodge will not receive the spreadsheet until six weeks after the April 1-decision (May 13). That is because natural persons or legal entities have the option to object to publishing the information in an administrative procedure at the Court in First Instance if they feel that publishing the information disproportionally affects their interests.

Hassink furthermore reasons that making lease-contracts public amounts to revealing information about the financial management of the lessor. “Among others, square meter price and location provide insight into the business,” the minister wrote to Hodge.

This is obviously a highly frustrating position – one that protects real estate owners against outsiders. Making such information public is actually in the general interest, because it could drive prices down and save the government (and the taxpayer) money. It is an odd position; elsewhere, square meter prices of real estate are public industry-data for everyone to see. That way it is also possible to judge whether the government is paying the right price for its real estate. Minister Hassink apparently prefers to keep this a big secret – and that is a pity if there ever was one.

The Minister has a different opinion about this aspect. He wrote to Hodge: “This is competition sensitive information. It is not implausible that by publishing lease-contracts – financial transactions and overviews, all documentation that shows location, price and personal data – there is a significant risk that future lease contracts the government wishes to negotiate, will tune their prices according to the highest lease prices.”

This is of course the world upside down. Real estate prices fluctuate – or ought to fluctuate – based on supply and demand. High demand and scarce availability will drive prices up, while the same demand in a plentiful market will drive the price down because owners will want to lease their properties at all cost. Keeping the financial data for this market under wraps defeats the purpose – and that triggers conspiracy-like questions: what does the government have to hide and who are the owners of all this real estate?

Minister Hassink sends Hodge on a hunting expedition with the answer to his last question – the one about the amount of money the government has budgeted this year for the lease of buildings. Instead of providing the number, the minister refers Hodge to the website of the parliament, where the budget is available for perusal. Somewhere in that mountain of data, is the answer to at least one of Hodge’s questions.

To save Hodge the trouble, this is what we found in the 2014 budget, apart from the rent for the parliament building. For the high Councils of State the figures are there. The annual lease for the Council of Advice’s digs is 97,644 guilders, for the General Audit Chamber 89,000 guilders, the Ombudsman 130,968 guilders and the Social Economic Council 165,000 guilders. The grand total is then 1,618,872 guilders ($904,398).

The rent for other government buildings is listed under facility management: 14,379,272 guilders ($8,033,113). Only for the police station there is a separate rent listed of 240,080 guilders ($134,123). So altogether, the budget contains roughly $9 million in rent for the real estate the government needs to house its services and its 1,800 civil servants.

At least, Hodge now has a partial answer to his question and since all of these data come from public sources, it is hard to understand why the government has not been a bit more forthcoming with it towards a citizen who asked for this information.

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