Information Commissioner Jennifer
Dilbert has ordered the Cabinet Office to release the transcripts of
constitutional negotiations that took place between September 2008 and February
The now-defunct Human Rights
Committee had applied for access to the transcripts of the three rounds of
constitutional negotiation talks, but the Cabinet Office turned down the
application, citing confidentiality and the possibility of prejudicing international
relations with the Foreign and Commonwealth Office, even though the FCO gave
permission for the transcripts to be made public.
Mrs. Dilbert ordered the Cabinet
Office to provide the applicant, which she did not name in her 20 May written
ruling, with a copy of the meetings’ transcripts within 45 days of her order
being made. The Cabinet Office has until 4 July to appeal the decision in the
form of a judicial review before the Grand Court.
Sara Collins, the former chair of
the Human Rights Committee, said she was pleased with the commissioner’s
decision, saying the committee had applied for the transcripts to be released
because she felt the Caymanian public had a right to know what discussions had
led to the establishment of the new constitution.
“The application was made in the
interests of transparency and on the basis of our belief that there should be a
clear and open record of how the document came into being,” Ms Collins said.
“We had originally requested a copy
of the transcript because we were ourselves parties to the talks and wanted to
check the record. However, we support the principles underpinning the Freedom
of Information Law and the importance of openness to a fair and effective
“For discussions of such significance,
on behalf of the people, we think it is right that the people should know what
was said on their behalf and that light should be shed on the talks in the form
of this disclosure order,” she added.
The Human Rights Committee had
asked on 6 March for access to the records through a Freedom of Information
During three separate meetings, two
in Cayman and one in London, representatives from the Cayman Islands met with
the United Kingdom Foreign and Commonwealth Office to discuss what should be included
in the new constitution.
Delegates from Cayman included
representatives from the government, the Human Rights Committee, the Ministers
Association, and the Seventh Day Adventists. Feedbackfrom public consultations
were also discussed at the meetings.
In a referendum, the public voted
to accept the draft constitution drawn up as a result of the meetings, on the
same day as the government election on 20 May, 2009, and nearly 63 per cent of
voters agreed to the new constitution. It came into effect on 6 November last
The Cabinet Office originally
withheld the release of the transcripts on four grounds of exemption – that its
disclosure would prejudice international relations; that the information was
communicated in confidence; that its disclosure would inhibit free and frank
exchange of views for the purposes of deliberation; and its disclosure would
prejudice the effective conduct of public affairs.
Mrs. Dilbert rejected all four
grounds and ordered the release of the transcripts.
In her ruling, Mrs. Dilbert
revealed that the Cabinet Office advised that in November last year, the
Foreign and Commonwealth Office had told the governor of the Cayman Islands, at
the time Stuart Jack, that it no longer objected to the release of the
Despite this, the Cabinet Office
argued that the disclosure of the requested records will affect the Islands’
“ability to access information of a confidential nature from other governments
and international organisations”.
However, Mrs. Dilbert pointed out that
the Cabinet Office had not succeeded in “indicating how, or why, this would
occur. It has also failed to draw any correlation between the release of these
records and any type of prejudice.
“The only foreign government or
international organisation involved is the FCO and they have since advised that
they have no objection to the release of the record.”
The Cabinet Office also declined to
release the information because it would “inhibit free and frank exchange of
views” and that participants in the talks took part on the basis that their
views would remain confidential.
But the information commissioner,
in her ruling, said she saw no evidence that participants had been told their
discussions would be confidential and that the Cabinet Office had “not provided
me with even anecdotal evidence to indicate how the disclosure at this point in
time, of the transcripts of the constitutional talks, would or would be likely
to inhibit the free and frank exchange of views for the purposes of
In her ruling, she added: “The
talks were recorded and transcribed and they should therefore be a part of the
public history of the Cayman Islands.”.
She said the Cabinet Office had
also failed to persuade her that the disclosure of the transcript could prejudice
the effective conduct of public affairs.
This is the fourth decision made
under the Freedom of Information Law, 2007, by Mrs. Dilbert.
If the Cabinet Office does not
release the transcript by the deadline, and does not appeal to the courts by
the 4 July, the information commissioner said she would certify in writing to
the Grand Court the failure to comply with her decision and the court may
consider this under the rules relating to contempt of court.