FOIA Law Places Burden of Proof on Government

The Freedom of Information Act (FOIA) assigns government ministries the responsibility to justify any refusal of access to public records, a requirement underscored by Section 38 of the Act.

Under the FOIA, every person has the right to request access to government-held information unless the document qualifies as exempt under Part IV. If a ministry refuses access, it must issue written notice under Section 21 stating the reasons for the decision and informing the applicant of their right to seek review by the Ombudsman.

FOIA’s Section 38—which governs to Review of Decisions process—specifically states:

“In proceedings under this Part, the Ministry or prescribed authority to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Ombudsman should give a decision adverse to the applicant.”

Consequently, it establishes that when an applicant appeals a refusal to the Ombudsman (and the Ombudsman makes a determination), the government ministry or prescribed authority carries the legal burden of proof. It must demonstrate that its decision to withhold information was justified under one of the Act’s exemptions—such as national security, Cabinet confidentiality, or legal privilege—or that the Ombudsman should rule against the applicant.

The process is designed to ensure that access to information remains the rule rather than the exception. The ministry must prove the validity of its refusal, not the applicant the validity of their request. Failure to meet this burden can lead the Ombudsman to order disclosure under Section 39.

The Government of Belize’s recent appeal to the High Court, seeking to overturn the Ombudsman’s directive to release information on payments to private law firms, is taking this review process into a new forum.

While the FOIA allows appeals to the Supreme Court under Section 43, such appeals typically follow a completed review. The Attorney General’s decision to challenge the Ombudsman’s directive directly now places the interpretation of these procedural safeguards before the judiciary.