FOI Law: Cayman vs UK

A key issue related to whether records from certain government departments can be released under the Cayman Islands’ new Freedom of Information Law remains unresolved.

The crux of the matter concerns whether records subject to release are owned by the Caymanian government, or if they can be claimed by the Foreign Commonwealth Office of the United Kingdom.

The FOI Law, approved in September by the Legislative Assembly, does not apply to records that belong to the government of the United Kingdom, Great Britain or Northern Ireland; regardless of whether those records are created or held in the Cayman Islands or elsewhere.

‘Does that include immigration records?’ asked long-time island resident Gordon Barlow at a meeting held with FOI stakeholders last week.

Mr. Barlow, a former member of the Cayman Islands Human Rights Committee, said the law’s application needed to be clarified. He said it could presumably be argued that immigration records are property of the commonwealth office and therefore not releasable under the Cayman FOI legislation.

The experts haven’t come to a consensus on that question.

‘I don’t know how this government is going to resolve that,’ said Laura Neuman, an attorney with the Carter Center in Atlanta, Georgia. ‘I think it could be very frustrating — for you all to ask for information and be denied because it’s not Cayman’s property.’

Cayman’s FOI Coordinator Carole Excell said there hasn’t been a final decision reached on what the UK exemption will entail.

‘We need to look at…what really is the property of the UK government as opposed to what’s under control of, say, the governor,’ she said. ‘For example, the governor’s instructions from the UK — that would be considered, I think, fairly within the property of the government of the UK.’

Ms Neuman said Cayman Islands residents can use UK Freedom of Information Laws to make their requests for British government records. But she said the UK FOI Act is actually not as good in some ways as Cayman’s.

Cayman’s chief immigration officer, customs collector, and police commissioner are all appointed by the Cayman Islands’ governor who is appointed by Her Majesty, the Queen of England. The relationship of those departments to the Crown could cast doubt upon who ultimately owns their records.

It’s unclear whether many law enforcement records will be releasable under Cayman’s FOI law anyway, which contains a number of exemptions related to those documents.

Under the law, records are exempt from release if they reveal confidential sources of police information, lawful methods and procedures used in criminal investigations, or any information, which could reasonably be expected to affect the conduct of an investigation or prosecution.

Also, immigration records could fall under broad exemptions in the law that state a public authority ‘shall not grant access to a record if it would involve the unreasonable disclosure of personal information of any person, whether living or dead.’

Regulations attached to Cayman’s Freedom of Information Law that may help define ownership of government records are expected to be drafted and sent to Cabinet sometime next year.