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Unauthorized Disclosure of Official Information Bill, 2023

SKNISEditor by SKNISEditor
November 16, 2023
in Bills, Featured
POST CABINET BRIEFING FOR MONDAY JUNE 12, 2017
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No. … of 2023 Unauthorized Disclosure of Saint Christopher  Official Information Bill, 2023 and Nevis 

Arrangement of Sections. 

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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 

(c) any other relevant laws pertaining to the disclosure of information; 

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; 

(c) defence policy and strategy and military planning and intelligence; 

(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. 

(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— 

(a) confidential Government communications; 

(b) prejudicial commercial communications; 

(c) health and safety; 

(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 

(c) privileged or sensitive geological and geophysical information for the purposes of  sustainable development. 

(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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