Cabinet can remove FOI commissioner

The person who will ultimately rule on what government records are released to the public under the Cayman Islands’ proposed Freedom of Information Law can be removed from that position at any time by Cabinet ministers.

That’s according to the section of the bill which establishes the office of Information Commissioner. The bill is expected to be voted on in the next meeting of the Legislative Assembly.

The proposal has raised questions about just how independent the Information Commissioner will be following their appointment to that post.

The Information Commissioner would be selected by the Cayman Islands Governor after discussions with Cabinet. The commissioner could be removed for a number of reasons including: if the person becomes unsound in mind, or suffers a debilitating illness; becomes bankrupt; is convicted of certain crimes; or if the person fails to carry out the functions of the commissioner’s office.

Similar provisions for the independent offices of the Auditor General and Complaints Commissioner are written in law and in amendments to Cayman’s constitution.

However, one key difference is that the Auditor General and Complaints Commissioner can only be removed from their positions at the sole discretion of the governor, who is appointed by Her Majesty, the Queen of England.

The Cayman Islands Cabinet is made up of the governor, three official members appointed by the governor, and five ministers elected by the citizens of Cayman.

Both Auditor General Dan Duguay and Complaints Commissioner John Epp agreed giving Cabinet the power to terminate the Information Commissioner’s appointment would bring politics into play when the commissioner makes controversial rulings on releasing government records.

‘You have to make sure that the incumbents feel comfortable to make comments that they need to make, and you’re trying to provide them with that assurance that they won’t be dismissed if somebody disagrees with their point of view,’ Mr. Duguay said.

‘That’s important for all of those positions,’ he said, referring to the Auditor General, Complaints Commissioner, and Information Commissioner.

‘Making provision for removal by the Governor in his sole discretion bolsters the independence of the office of Information Commissioner,’ said Complaints Commissioner John Epp. ‘But it is not the only acceptable model to use.’

For instance, Mr. Epp said leaving the decision to terminate an independent official’s appointment in the hands of the entire Legislative Assembly on the basis of a two-thirds or three-quarters majority vote of the members would be one option.

Also, Mr. Duguay and Mr. Epp said the Governor would clearly consult with Cabinet ministers on all major appointments in any case.

‘We’re talking about subtle distinctions,’ Mr. Duguay said.

‘But I do feel that it’s a bit better that (the decision to terminate an independent official’s appointment) is by the governor because that removes it as much as possible from the political process.’

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