FOI Bill sets broad guidelines

A Freedom of Information Bill expected to be approved by Cayman Islands lawmakers later this year gives the public wide-ranging ability to seek government records.

But the proposal also sets out broad categories of records that would be exempted from release at the request of government departments.

Some of the exempted records will include: those related to the conduct of a criminal investigation, the trial of any person, those that would reveal confidential sources of information in relation to law enforcement, or those that reveal investigative methods used by police or customs officers.

Official records would also be exempt if the disclosure would constitute an actionable breach of confidence, be in contempt of court, or infringe the privileges of parliament.

The closed-door consultations of Cabinet; including advice or recommendations, would be exempted from release by the bill. Records are also exempt from disclosure if they could prejudice the maintenance of the convention of collective responsibility of government ministers, inhibit the free and frank exchange of views in deliberations, or would be likely to prejudice the effective conduct of public affairs.

The last set of exemptions is not defined in the FOI Bill. In fact, Cayman Islands Information Coordinator Carole Excell said those exemptions were written broadly on purpose, so that they would essentially have to be decided on a case-by-case basis.

‘It’s not something that we can say that in all of these instances…it would fall within that exemption,’ Ms Excell said. ‘But we can give general guidance.’

The only records entirely exempted from release by the bill include the judicial functions of a court, or the holder of a judicial office; various security and intelligence services; and records belonging to a foreign government including the United Kingdom.

Ms Excell said the broad, general nature of the proposal was a good thing for those seeking government records.

‘It means you’re not saying broad classifications of (specific) documents are exempt. All of the exemptions are qualified in some respects.’

However, she admits the proposal leaves decisions about releasing information in disputed cases in the hands of government chief officers, Cabinet Ministers, and a yet-to-be appointed independent Information Commissioner. Some cases where the release of information is disputed could even wind up in court.

‘It’s an important check and balance to have it that way,’ she said.

Freedom of Information or Open Records Laws exist in many countries to allow public access to certain records and information kept by various government agencies. Such a law has never existed in Cayman. The first draft of the FOI bill was published in late 2005 and has been the subject of an extensive public review.

How it works

Under the newly-revised FOI bill, anyone in Cayman can request records in various forms from government departments, government companies or statutory authorities. Private or non-profit agencies that receive some government funding may also be subject to certain requests.

Someone seeking information under FOI would file their request with the information manager of the appropriate agency or department. The information manager would then have up to 30 calendar days to respond to that request.

The manager can delay the request for an additional 30 calendar days if there’s determined to be a reasonable cause for the delay.

‘The public authority would make the determination that because of the request’s scale, or the number of documents, or the time it will take to search…that they will need an extension of time,’ Ms Excell said.

Also, requests not filed with the correct agency could tack on an additional 14 days to the government’s response while the application is sent to the proper department.

Information officers can choose to defer the release of information for a handful of reasons including; if the publication of the record is already required, if the record is being prepared for presentation to the Legislative Assembly, or if the premature release of the record is determined to be ‘contrary to the public interest.’

Public interest, under the FOI bill, has not been defined. Ms Excell said it would be clearly stated in accompanying regulations now being drafted by a select committee. Those regulations should be complete in late 2008 or early 2009…the same time the FOI proposal would take effect if it is passed.

If an information officer refuses to release the information requested, that refusal can be appealed internally to the chief officer or minister responsible for the public authority. A decision on that appeal would also be required within 30 calendar days.

A refusal to release information or records by a chief officer or minister can be appealed to the Cayman Islands Information Commissioner.

The Information Commissioner’s office is created by the FOI Bill. Part of its job will be to rule on various disputes over what information should be released and when. The commissioner, who is appointed by Cabinet, can hold office for up to two five-year terms. However, the commissioner can be removed at any time by Cabinet.

Appeals to the Information Commissioner under the FOI Bill are expected to be decided within 30 calendar days, after both sides are given an opportunity to summarize their cases for or against the release of the records requested. The commissioner can extend the review period for an additional 30 days ‘for good cause.’

The commissioner is given full power to investigate government agencies that do not comply with FOI procedures. Those powers include issuing witness subpoenas, and forcing government agencies to release documents. Only the Cayman Islands Governor can override the powers granted to the commissioner under the proposal.

Your FOI rights

Under the FOI bill, any person can request information and is not required to give a reason for that request.

Fees will be charged to those requesting information only in cases where that information is actually able to be released. There is no application fee charged under the FOI proposal. A schedule of fees will be set out in the FOI regulations.

Any government record that exists can be requested under the terms of this bill. Also, certain records that are exempted from release under the bill lose that exempt status 20 years after they were created.

No matter who makes the initial request for a record under the FOI Bill, any records released by government will be made available to anyone who wants them.

Applications for release of information or records can be made via a letter, fax or e-mail. Those seeking the information can ask it to be released in a particular form such as paper copies, tape recordings, etc. The public authority granting the record may refuse to release it in a specific form if releasing information in that form would damage the record itself, or would infringe on intellectual property rights.

The bill also protects the rights and jobs of whistleblowers, or those who bring wrong-doing to the attention of government officials or the authorities.

Under the proposal: ‘No person may be subject to any legal, administrative or employment-related sanction, regardless of any breach of a legal or employment-related obligation, for releasing information on a wrong-doing.’

Those who alter, deface, erase, destroy or conceal records accessed under the FOI Bill could be fined up to $100,000 or sent to prison for six months upon conviction.

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