Victory declared for open records
International regulatory standards that were used in the creation of Cayman’s governing policies on the importation and housing of bottle nose dolphins have been released to the public following an 18-month dispute.
The rules set down by the Alliance of Marine Mammal Parks and Aquarium Standards and Guidelines generally provide advice to members on the proper care, housing and shipment of dolphins used in marine parks. Cayman’s Department of Agriculture used the guidelines to create its own local policies regarding standards of care at the Islands’ two dolphinariums.
An open records request was made for the standards and guidelines document in May 2009. The department initially denied that request, stating the standards had been provided to it by a private entity in confidence.
The refusal was appealed by the individual who applied for the information, William Adam. Mr. Adam argued that if the international standards were to be used as part of a government regulatory document, they should be a matter of public record. In effect, Mr. Adam stated that government should not be able to make regulations without making them available to the people who are governed thereby.
Typically, open records applicants are not identified by the Caymanian Compass, but in this case Mr. Adam agreed to be named and quoted for this article.
After considering arguments in the case, Cayman Islands Information Commissioner Jennifer Dilbert ruled in April 2010 that the dolphin facility standards should be released.
From the time of that ruling, the documents were held by the government while a court challenge against the information commissioner was considered. Earlier this month, the attorney general’s office decided to abandon – or vacate – its proposed appeal. The office gave no reason for why it had done so.
“The application for judicial review did delay the release of the document,” Mrs. Dilbert said. “However, I believe that the FOI (Freedom of Information) process does work and that the applicant in this matter followed through with their request and was successful in obtaining the record they sought.”
According to Mrs. Dilbert, it took 100 days before the government decided to drop its court appeal and provide a copy of the dolphin standards to Mr. Adam.
Mr. Adam said he wanted to stress that Cayman’s open records process worked in this case and that he considered it a victory for proponents of open government. He was given a copy of the dolphin facility standards on Friday, 17 September.
“They (referring to the government) used delay tactics that can be used in the law,” he said. “But I don’t want to put any negative against the information commissioner’s office at all. They need all the support that they can get.
Mr. Adam said he believed that public support for the information commissioner’s office was crucial, given that the current government had initiated a review – by a Legislative Assembly committee – of Cayman’s open records law.
“Parliament considers themselves supreme…the law is subject to the whims of parliament,” Mr. Adam said. “The government of the day…can change the Constitution; they can change the law at will.”
“The (FOI) Law hasn’t been changed yet, but that doesn’t mean they wouldn’t want to change it. They have a committee of the whole house, with the intent is to limit freedom of information.”
Cayman Islands Premier McKeeva Bush announced the committee review of the FOI Law in late June. The review is required under the FOI Law once 18 months have passed since its inception.
Freedom of Information began here on 5 January, 2009.
Premier Bush – who has previously called the law a “scandal sheet” – told the Legislative Assembly in late June that the FOI review committee would have the ability to summon witnesses and would consider two issues in particular: the fee structure attached to the law and the provision in the law that allows requests for information to be made anonymously.
Mr. Bush said he appointed a committee of the entire Legislative Assembly to “ensure that this review was not seen as any party or political agenda”. The committee is to be chaired by Speaker of the House Mary Lawrence.
Despite the legal requirement for the FOI review, opposition party MLA Alden McLaughlin said back in June that he was not convinced the review would remain apolitical “given some of the public utterances of the premier recently”.
Mr. McLaughlin said any Freedom of Information regime in any country was likely to give the sitting government some consternation.
“It’s designed to do just that,” he told the House. “We have to develop a level of tolerance and a willingness to accept these sorts of provisions are critically important.
The opposition member said he was concerned that any attempt to increase fees for FOI requests or efforts to require those filing a request to identify themselves would have a “chilling effect” on the progress of the law in Cayman.
Mr. Bush said that FOI Laws have been recognised worldwide as necessary to freedom of speech and assured legislators that providing information didn’t upset the ruling United Democratic Party government.
However, the premier questioned whether the law was functioning as well as it could in Cayman and noted that even Information Commissioner Jennifer Dilbert had stated concerns about the cost of the measure.
“FOI was not intended to, nor should it become, a financial burden on our country,” Mr. Bush said, adding that government was concerned about an already strained Civil Service having to perform “menial tasks” in retrieving data that was often time-consuming and difficult to find.
Premier Bush also told the assembly that any claims about him not supporting open records regimes were simply false.
“I have always supported the principle of FOI…and I continue to have that belief,” he said before the House in June.