Information Commissioner Jennifer
Dilbert has ordered the release of information pertaining to guidelines for
keeping dolphins in captivity.
The decision relates to a request
made by an applicant who was refused access to a copy of the Alliance of Marine
Mammal Parks and Aquarium Standards and Guidelines document by the Department
of Agriculture. The document was referenced in the Cayman Islands’ own policy
document entitled Conditions Governing the Importation, Housing, Husbandry and
use of Bottlenose Dolphins in the Cayman Islands.
The department obtained the
document in question from the Alliance of Marine Mammal Parks and Aquariums in
order to assist in the creation of standards specific to the keeping of
dolphins in captivity in the Cayman Islands.
The department asserted that the
document should be withheld under three sections of the Freedom of Information
Law, namely whether the release of the record would constitute an actionable
breach of confidence; whether disclosure would reveal information of commercial
value which would be diminished or destroyed by the disclosure; and whether it
would reveal information concerning the commercial interests of a person or organisation
and through the disclosure prejudice those interests. The information commissioner
also considered whether the record should be exempt from disclosure due to it
containing information communicated in confidence to government by a foreign
government or international organisation.
Actionable breach of confidence
In the review by the information
commissioner, the department stated that it had referenced the document in its
entirety in error, as the intent was always for the document to be treated in
confidence. The document was integrated in the Department of Agriculture’s
policy paper, Conditions Governing the Importation, Housing, Husbandry and use
of Bottlenose Dolphins in the Cayman Islands. The policy paper states that “persons
interested in importing bottlenose dolphins for public display in the Cayman
Islands [are] required to satisfy certain conditions prior to [being] granted
an import permit.” The document then goes on to state that “the guidelines referred
to in this document are the Standards and Guidelines (2003) document of the
Alliance of Marine Mammal Parks and Aquariums”.
The applicant argued that as the
requested document was the government’s published requirement for the holding
and displaying of dolphins, it had to be a public document, as is the case with
all laws, regulations and standards adopted by government from other organisations
In the decision document, the
information commissioner stated that “[t]he guidelines would have to be seen
and considered by any party seeking to become a member of the Alliance, as
membership is contingent upon complying with the guidelines.”
According to the information
commissioner, this calls into question the confidential nature of the document.
Although the alliance stated that
the information contained in the document has commercial value that could be
diminished were it to be release, the applicant pointed out that similar
standards elsewhere in the world are readily available to the public.
In considering the arguments, the
information commissioner found that neither the department nor the alliance had
been able to show any independent value attached to the information.
Prejudice commercial interests
The commissioner found that there
was not sufficient evidence put forward that the disclosure of the document
would prejudice the commercial interests of the alliance.
Communicated in confidence
The alliance contended that without
a pledge of confidentiality, the standards are never sent to any other
The department also provided
affidavits by Brian Crichlow, assistant director of agriculture, and Alfred
Benjamin, former chief agricultural and veterinary officer, on the terms under
which the document was obtained.
However, in the affidavit Mr. Crichlow
stated that the department has been “unable to locate the earlier
correspondence between itself and the Alliance expressly stating the document
was being made available to the DOA on a confidential basis for its internal
The information commissioner found
that although there had been after the fact assertions of the confidentiality
of the document, there was a lack of persuasive elements on the part of the
department that it had given any assurances to the alliance that the document
would be kept confidential. By using it in a public document, which is
inherently not confidential, the department also called into question the
confidence in which the document was provided.
The department now has until 3 June
to release the document, unless an appeal is filed with the Grand Court for a
judicial review of the decision.