Law protects ‘good faith’ whistleblowers

Government leaders said last week that civil servants who report what they believe is illegal activity, even if they make a mistake, will be protected under the Freedom of Information Law passed by the Legislative Assembly.

The law will take effect in January 2009. Section 50 of the legislation provides: ‘No person may be subjected 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 law as the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption, dishonesty, or serious maladministration.

The law appears to conflict with long-standing secrecy rules for Cayman’s civil servants set out in the public servant’s code of conduct.

Government ministers have not answered questions regarding whether the law or the code of conduct would win out if a civil servant reported what they thought was wrong-doing, and it was later determined none had occurred.

Education Minister Alden McLaughlin said the key is whether the government employee acted in good faith in reporting wrong-doing, a practice generally known as whistle-blowing.

‘In other words they didn’t just go and dream up something or weren’t motivated by some other agenda,’ Mr. McLaughlin said.

Leader of Government Business Kurt Tibbetts and Tourism Minister Charles Clifford also said the government wants to encourage civil servants to report things they find to be irregular.

Mr. Clifford is one of the subjects of a commission of enquiry under way this week. He’s been accused of taking certain government documents from his former permanent secretary office in the Ministry of Tourism and revealing them to the press.

The revelation of those documents has, at least in part, led to findings of maladministration by the auditor general against the previous government.

However, Opposition Leader McKeeva Bush has argued that Mr. Clifford should not be considered a whistleblower. Mr. Bush has claimed that the former civil servant only leaked the documents to the press because he was planning to run for office in the May 2005 elections.

Governor Stuart Jack ordered the formation of the commission of enquiry partly to look into Cayman Islands governance issues, including whether there is adequate protection for those who expose wrong-doing within government.

Members of the ruling People’s Progressive Movement party have taken a dim view of this approach.

‘That is complete nonsense,’ Mr. McLaughlin said. ‘Current government policy — to which the governor assented already — provides those protections.’

‘It is government policy, even though the (Freedom of Information) law has not come into effect,’ said Mr. Tibbetts.

The law is not retroactive and is not expected to have an affect on Mr. Clifford’s case in any event.

Mr. McLaughlin