FOI: Chipping away at a culture of secrecy

 Cayman Islands Information Commissioner Jennifer Dilbert was a bit upset recently when a high-ranking official in government referred to Cayman’s Freedom of Information office as “a nice accessory.”

“The (Freedom of Information) Law has been passed,” Dilbert says. “My office has been put in place; we have an approved budget; we are in the Constitution. It is a right that’s been given to the Caymanian people.”

“(FOI) will continue.”

Dilbert says the “accessory” statement, actually made by then-Chief Secretary and current Deputy Governor Donovan Ebanks, is somewhat typical of the stance the old guard of the Cayman Islands civil service has taken in response to the implementation of the country’s first Freedom of Information Law on 5 January, 2009.

“We are still struggling,” Dilbert says of her office, which handles public appeals of instances where government records have been withheld from release.

“I feel that the necessary laws haven’t been passed,” she says. “I need to have certain powers to be able to hire my own staff, pay my own staff, so that there won’t be interference from government.”

Dilbert is referring to changes in the Public Service Management Law and Public Management and Finance Laws of the Cayman Islands, which would make the Information Commissioner a legal appointing officer. Right now, she says her supposedly independent office has to go through civil service channels.

“I report to the Legislative Assembly, but that procedure hasn’t been set up and it’s been nine months now,” she says. “I am concerned government can affect my independence.”

The Information Commissioner is one of three independent offices set up within the Cayman Islands government, including the auditor general and the complaints commissioner. The commissioner essentially acts as a referee when there are disputes between government agencies and those requesting government records about what should be released.

But the commissioner and her staff are just one part of the open records equation.

Each of 88 separate Cayman Islands government agencies now has at least one person who is responsible for accepting requests for information from the public. They are the information managers.

To help educate and train those individuals, the Freedom of Information Unit was created in 2007.

From her perspective, Acting FOI Unit Director Natasha Bodden says the open records process has improved by leaps and bounds since then.

“Definitely, acceptance has grown,” Natasha says. “When we first brought up FOI and started telling (civil servants)…there was an air of ‘what, we have to do what?’”

Almost all government departments were unable to afford to hire a separate information manager to respond to FOI requests, which led to fears from civil servants that more paperwork would simply be shifted onto those unfortunates picked for the job.

“Now that we’re 10, almost eleven months into it, people are seeing they can manage it,” Natasha says.

What is also encouraging, Natasha says, is that the vast number of open records requests have been answered within the 30-day timeline prescribed by the FOI Law. More than 90 per cent of those requests had been answered in a timely fashion from January through September.

And there have been a large number of requests.

Since 5 January, 508 requests have been made for government information under the FOI Law. At first, it appeared that open records queries were steadily dropping off through June, but more requests have come in since.

More than 140 requests were made in August alone, but FOI Unit personnel pointed out that 60 of those were the same request made to 60 separate government agencies.

Also, according to data collected through July, it appears that most open records queries are not being made by members of the press.

FOI Unit analyst Aubrey Bodden says about 45 per cent of all requests through July appeared to have come from Cayman’s media houses. However, she noted that she couldn’t be sure since those making open records requests don’t have to identify themselves.

Aubrey says some of the more intriguing requests have come from the press, or as a result of press requests.

“There was a report in the Caymanian Compass about one or more obstetricians who had made negligent errors during child delivery that had resulted in death or serious injury,” Aubrey says. “Somebody wanted to know the names of the obstetricians.”

That request is still being considered.

“One of them was correspondence between the (Royal Cayman Islands Police) Family Services Unit…and the legal drafting department regarding the proposed sex offender registry,” she says. “That’s something that was very much in the public domain.”

That request was granted in part, with some of the information redacted, Aubrey says.

Another request was made for the supporting documents used in the granting of Caymanian status to 3,152 people in 2003.

“Not just the people’s names, but who put them up and why,” Aubrey says. After a search, the Cabinet Office found records containing that level of detail did not exist.

A September report from the FOI Unit showed some other areas of recent interest:

*Cabinet Office – all funding approved by Cabinet…between 1 May and 20 May, including information about what the money was spent on.

*Cayman Turtle Farm (Boatswain’s Beach) – Total cumulative losses for the Turtle Farm, broken down into operating losses and total interest payments.

*Finance and Economics Portfolio – Receivables outstanding, sorted by government departments, statutory authorities, ministries and companies, the types of arrears and the period of arrears outstanding.

*Immigration Department – The in-transit passenger movements made through the Owen Roberts International Airport in 2008…and confirmation of whether those in-transit figures are included in the air arrival figures posted by the Department of Tourism.

*National Roads Authority – All quarries currently used, all quarries used in the past ten years, and the annual cost to the NRA of materials gleaned from all quarries each year for the past ten years.

*RCIPS – The number of firearms that have been legally imported into the Cayman Islands since 1 January, 2004.

Figures for all open records requests since January show that nearly half of those have been granted in full to the requester. About 20 per cent of requests were either withdrawn or couldn’t be answered because the records requested didn’t exist.

About 15 per cent of all requests were granted in part with some information redacted or withheld.

Natasha says the numbers show there is significant interest in FOI from the public, not just the press, and that people are using their new right to information.

“Internationally, it’s been shown…countries which have well-used FOI laws, it really does promote transparency and accountability of government, and it does increase public participation in decision making,” she says.

“Even here, we’ve seen in the last ten months, the difference in what people are requesting, how their requests are being handled. Before FOI came into effect they may have had the misconception…that decisions were made just willy-nilly, part of a certain club or group of people would make decisions.”

Despite her struggles with internal bureaucracies, Commissioner Dilbert agrees with that sentiment.

“I’m pleased with the number of applications, and I’m pleased with the policies we’ve set up in this office,” she says.

The Information Commissioner’s duties include reviewing the current FOI Law to identify areas where there are weaknesses in the process.

Dilbert says she may look into how long internal reviews of open records requests are taking. If an initial request is refused, the applicant has the opportunity to first appeal within a government department before taking their case to the information commissioner’s office.

“I just want to be sure (those internal reviews) are adding value to the process and not just delaying it,” she says.

The FOI Unit and the information commissioner acknowledge they still have work ahead. One of the areas the unit will be focusing on over the next few years is the drafting and implementation of a data protection law – essentially a law that defines personal information that cannot be released in the public domain.

Dilbert says she also wants to review government record keeping policies in certain departments.