Grand Court will review FOI decision
The Department of Agriculture has
appealed the information commissioner’s order from 20 April 2010 to release a
document relating to guidelines for keeping dolphins in captivity. The attorney
general, acting on behalf of the Department of Agriculture, filed an appeal on
2 June with the Grand Court for judicial review of the decision.
In her decision the Information
Commissioner Jennifer Dilbert found that the “Alliance of Marine Mammal Parks
and Aquarium Standards and Guidelines” are not exempt from disclosure under the
Freedom of Information Law and ordered the Department of Agriculture to provide
the FOI applicant with a copy of the record.
The DOA had previously denied the
application by a member of the public on the grounds that the department had
obtained the document from the private sector alliance under the condition of
confidentiality. It also argued that a release of the standards and guidelines
of the marine park alliance would diminish the commercial value of the
information and prejudice commercial interests.
The appeal by the DOA seeks an
order that the information commissioner’s decision is quashed and sent back for
a re-hearing. The Grand Court application claims that the information
commissioner erred in her evaluation of the confidentiality nature of the
document and in her failure to recognise that the commissioner has a statutory
obligation to consider other relevant exemptions in an appeal hearing and not
only those cited by the public authority.
The information commissioner did
not support this view in her decision, as it would mean that all possible
exemptions had to be argued in every appeal. “I do not consider that this was
the intention of the FOI Law, as it states clearly that the burden of proof
lies with the public authority,” Ms. Dilbert wrote.
The matter became a point of
contention after the DOA missed a deadline to add further exemptions to the
hearing and the information commissioner rejected a request for adjournment for
judicial review. She informed the authority at the time that it could apply to
the Grand Court for judicial review after the hearing, once a decision was
In April the information
commissioner ruled that both the DOA and AMMPA had failed to demonstrate that
the document was passed on in confidence. She added that the nature and purpose
of the information did not support the argument of confidentiality either. “The
information is a set of standards and guidelines, the purpose of which is to
help ensure best practice in the care and maintenance of marine mammals,” wrote
Ms. Dilbert. “I would not expect that a reasonable person would regard the
document as confidential.”
The DOA had obtained the document
to assist it in the creation of standards for the keeping of dolphins in
captivity in the Cayman Islands. It was referenced in the DOA’s policy paper,
“Conditions Governing the Importation, Housing, Husbandry and use of Bottlenose
Dolphins in the Cayman Islands”.
Although neither of Cayman’s
dolphin facilities, Dolphin Cove and Dolphin Discovery, are members of the
AMMPA, they would thus be subject to AMMPA standards and guidelines. Ms.
Dilbert pointed out that as the document has been referenced publicly as part
of the conditions attached to a law of the Cayman Islands, it must have entered
the public domain. The DOA in turn stated it had erroneously referenced the
AMMPA standards and guidelines and not quoted its content.
The appeal claims the information
commissioner erred in her assessment in this regard. The DOA appeal also asks
the Grand Court to direct the commissioner to consider exemptions under section
15(a) and 20(1)d of the FOI Law in the case. The exemptions covered by these
sections are that the disclosure of the information would prejudice the
security, defence or international relations of the Islands and that disclosure
would be likely to prejudice the effective conduct of public affairs.