Cayman FOI not here yet

A US open records expert who visited Cayman last week said the country has taken many positive steps toward enacting a Freedom of Information law.

But Laura Neuman of the Carter Center in Atlanta, Georgia warned that the Islands aren’t all the way there yet.

‘Increasingly, we’re seeing a problem in the actual use of these (FOI) laws after they’ve been passed,’ Ms Neuman said. ‘Implementation is the greatest challenge to government.’

Cayman’s Freedom of Information Law, which was passed by the Legislative Assembly in September, is not scheduled to take effect until January or February of 2009. Ms Neuman said in several countries in the Caribbean and Latin American region, the Carter Center has observed that the passage of FOI laws isn’t being followed up by enforcement.

‘Panama is a perfect example,’ Ms Neuman said. ‘Once the law was passed they patted themselves on the back and didn’t pay attention to the regulations. What was given with one hand in a great law was taken away with the regulations.’

‘For example, they fought very hard for what I believe is an international norm, that if you ask for information…you don’t have to give a reason. Then in the regulations it added a provision that said you had to have an interest in that information in order to get it.’

A 16-member select committee of public and private sector representatives is in the process of drafting regulations for the Cayman Islands Freedom of Information Law. The regulations are expected to include the cost of obtaining government information, and will define the role of information managers that oversee the operation of the FOI Law in each government agency.

The regulations will also define what the crucial legal test of public interest will be in regard to whether certain records should be released or withheld.

No one from the public or representatives from privately owned press agencies are allowed to attend the committee’s meetings. However, minutes of the meetings are posted on a website; People are encouraged to e-mail suggestions to the FOI coordinator’s office.

Ms Neuman also noted that Cayman would soon select an independent information commissioner who’s job will include ruling on whether government information should be made public in cases where the release of those records are disputed by the agency that holds them.

‘It’s really important that that person not be politicised,’ Ms Neuman said.

Under the law passed in Legislative Assembly, the appointment of an information commissioner is at the sole discretion of the Cayman Islands governor, who is an appointed official himself.

However, the law also gives Cabinet the ability to remove the commissioner at any time for various reasons including incompetence. Five of the nine Cayman Islands Cabinet members are elected officials.

Similar independent offices in Cayman, such as the auditor general or the complaints commissioner, can only be removed from office by the governor acting in his sole discretion.

‘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,’ said Auditor General Dan Duguay in a recent interview about the FOI 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, also in an earlier interview.

Ms Neuman urged members of the public, not just the media, to make open records requests.

‘If the law is not utilised, government will not expend scarce resources on its continued implementation and enforcement,’ she said.

Comparing Cayman FOI

In general, Ms Neuman gave good reviews to the Freedom of Information Law passed by the Legislature when comparing it to similar laws used around the world.

‘This law is better than the US Freedom of Information Act,’ she said, noting the US FOIA legislation only covers the executive branch of the government, not the judicial or legislative. She said the US federal government routinely allows its agencies to get far behind on requests for information, and has not updated its open records laws in some 40 years.

In fact, Ms Neuman said western societies generally seemed to be moving further away from solid open records laws

She said lawmakers in the UK and Ireland had recently voted to increase fees on Freedom of Information requests, which had sharply decreased the overall number of applications for information.

In the US, Ms Neuman said, open records requests to the federal government were often being denied in the post-9/11 world on the basis of national security.

She also criticised the governments of Canada and Australia for retreating on previously robust FOI laws.

The Carter Center’s research has found 70 countries throughout the world that have comprehensive freedom of information laws.

In the Caribbean and Latin American region, 25 countries have either laws or constitutional provisions that guarantee the public’s right to access information. Three other countries do so by executive decree.

Most of those laws have been passed within the last 10 to 15 years.