A law which currently makes it a crime to reveal certain confidential information to the public in Cayman appears to be in conflict with a section of the Freedom of Information Law that was passed last year.
The issue came up in a recent Commission of Enquiry report in which Commissioner Sir Richard Tucker recommended government review the apparent conflict by amending the confidentiality law.
‘In order to avoid uncertainty and unnecessary litigation, I recommend that the matter be clarified,’ Sir Richard wrote in the commission’s recent report.
The Confidential Relationships (Preservation) Law currently makes it a crime for ‘professional persons,’ including government employees, to make unauthorised disclosures or to misuse confidential information. The law also sets out certain circumstances in which that information can be disclosed, for instance, if evidence of a crime has been found and is reported to police.
The newly passed Freedom of Information (FOI) Law – which is scheduled to come into effect 1 January 2009 – allows certain information to be disclosed by government employees acting in the public interest, even if there is no evidence of a crime occurring.
Section 50 of the FOI Law provides general protections against both criminal and civil liability, as well as assurances against work place retaliation, for whistle-blowers (those who report wrong-doing) as long as they acted in good faith.
The disclosure of such information may involve records that the general public does not normally have a right of access to, which might run afoul of the Confidential Relationships Law.
The Commission of Enquiry recommendation came up during a review of Tourism Minister Charles Clifford’s decision to reveal confidential government documents to a local newspaper that he had obtained while serving as permanent secretary of the Ministry of Tourism in 2004.
Commissioner Tucker said Mr. Clifford’s action was a breach of his ‘continuing duty of confidentiality’ as a former civil servant.
‘Disclosure to the media is not a defence to the crime of unauthorised disclosure or misuse of confidential information, even if it can be established that the public had a legitimate interest in that information,’ the commissioner’s report stated.
The commissioner recommended no further action be taken against Mr Clifford for a number of reasons. (See Caymanian Compass 31 March)
According to Sir Richard, the implementation of the Freedom of Information Law will change the rules of the game.
‘Surprisingly, the new law does not specifically amend…the confidentiality law,’ he wrote.
Mr. Tucker also pointed out that the new FOI Law does not give enough practical guidance to civil servants on when the ‘whistle’ should be blown and to whom it should be blown.
‘This will depend upon the nature of the tune,’ the commissioner stated in his report.
Some instances of alleged wrong-doing could be reported internally, without relying on protections of the FOI Law. The commissioner recommended such guidelines be established in the government’s personnel regulations.
For example, a complaint against one’s department head might go to the chief secretary or chief officer; financial issues should go to the auditor general and so on. Mr. Tucker also recommended that civil servants be allowed to report wrong-doing without having to put the initial complaint into writing, which could discourage reporting of improprieties.
However, Mr. Tucker suggested that those who go outside their departments to the police, a Member of the Legislative Assembly or the press would have to seek protection through the FOI Law.
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