Whistleblower protection proposed

Cayman’s proposed Freedom of Information Law will guarantee certain rights to those who report wrong-doing within governmental entities.

The bill, which will be debated during the Legislative Assembly’s next meeting, states: ‘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.’

Wrong-doing is defined in the bill as the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption, dishonesty, or serious maladministration.

Freedom of Information Bill architects believe this provision, known as whistleblower protection, is a first-of-its-kind proposal in the Cayman Islands.

However, this proposed legal protection for those who report wrong-doing also appears to conflict with long-standing secrecy rules for Cayman’s civil servants.

According to the Cayman Islands Public Servant’s Code of Conduct: ‘A public servant must treat all official information and any dealings with the Governor, an official Member (of the Legislative Assembly) or (Cabinet) Minister as confidential, and, unless authorised to do so, must not give or disclose…any information about official business or anything of which he has official knowledge.’

The code of conduct is signed by all civil servants in Cayman before they accept a position with government.

Cabinet Ministers said they were uncertain how the apparently conflicting rules might be resolved. It was pointed out that when such issues have come up in the past, Cayman Islands’ law would out-rank a government code of conduct.

‘Whenever there’s conflict between that (the Civil Servant’s Code of Conduct) and the law itself, the law will prevail,’ said Tourism Minister Charles Clifford.

Education Minister Alden McLaughlin agreed, but said the matter might call for further consideration.

‘This (code of conduct) is not specific legislation,’ Mr. McLaughlin said. ‘It probably will need to be reviewed in light of the Freedom of Information (Bill).’

As it stands now, Mr. McLaughlin said would-be whistleblowers may have to make a judgment call.

‘If there is wrong-doing, you ought to, or you’re entitled to blow the whistle,’ Mr. McLaughlin said. ‘Absent wrong-doing, you’re bound by the usual confidentiality provisions.’

Ministers were asked what would happen if a civil servant reported what they thought was wrong-doing, and the situation turned out that everything was above-board.

‘You really expect me to answer that, do you?’ Mr. McLaughlin joked in response to a reporter’s question.

The Freedom of Information Bill states employment-related sanction cannot be given as long as the civil servant acted in ‘good faith and in the reasonable belief that the information was substantially true.’

But the bill also states the information revealed should disclose evidence of wrong-doing or a serious threat to health, safety or the environment.

Employment in the Cayman Islands civil service is under the direct control of the Governor and the Chief Secretary. Under the system of governance, elected members of parliament should have no input into the hiring and firing of those government employees.

‘It’s likely that, where there is a conflict, it will have to be reconciled before the bill is finalised,’ Mr. Clifford said.

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