The Information Commissioner’s Office has found that the Ministry of Finance, Tourism and Development, which is headed by Premier McKeeva Bush, contravened the Freedom of Information Law by failing to respond to two open records requests.
Acting Information Commissioner Jan Liebaers directed the ministry to fully respond to two applicants – one of which was the Caymanian Compass – by 19 December.
The first case involved a request for information submitted on 12 May, 2010, on how much the Ministry of Finance, Tourism and Development spent on travel for Mr. Bush and his companions, and how much was spent on each trip.
According to the findings of an investigation by the Information Commissioner’s Officer, the applicant in that case had still not received a full response 210 days after the application was made.
Hours after the Information Commissioner’s Office issued its findings, Premier Bush, in a publicly broadcast address on Thursday night, revealed that his ministry had spent $400,000 since June 2009 on travel expenses. However, a representative of the Information Commissioner’s Office said Monday that the Premier’s comments could not be considered an official response to the request for information and that a written response to the applicant would still be required.
In the second case, on 3 June, 2010, the Caymanian Compass requested a copy of a report on an independent review of the Fire Services Department following the conviction of a male fire officer for indecent assault of a female colleague. The Compass also requested details of any new procedures put in place by the Fire Services Departments in response to the review and matters arising from the court case.
Twenty days after submitting the application, the Compass asked why it had not received an acknowledgement of the request. The ministry’s human resources manager acknowledged the request on 28 June, explaining that a new information manager of the ministry had recently been appointed.
On 10 November, 160 days after the request was made, the human resources manager said the requested report pertained to an ongoing legal case and could not be released. The Compass responded by asking what legal issues would prevent the release of the report since the case was no longer actively being pursued.
At this stage, the Information Commissioner wrote to the ministry stating that the request should be logged, time lines adhered to and the relevant exemptions under which the request could legally be denied should be given. The commissioner advised the ministry to deal with the matter immediately. Shortly afterward, the information officer of the ministry contacted the Compass to ask for a further two weeks to log the request and provide a response.
As of Monday, 13 December, the Compass had not received a response on whether it will be given access to the report.
The Information Commissioner’s Office found the ministry contravened the FOI Law in both cases by failing to grant the applicant the opportunity to access the requested record and by failing to acknowledge the receipt of the application in the second case. It found that in the first case, the ministry agreed to provide the records about the ministry’s travel expenses, but failed to do so “after a series of long delays”. In the second case, the ministry has yet to formulate an initial decision relating to the application, which is effectively a refusal of access.
The Information Commissioner’s Office also found the ministry in contravention of Section 7(3)(c) of the law, which relates to the timeliness of a response to an open records request. According to Mr. Liebaers, “In Case 1, the information manager has agreed to disclose the records in question, but has not yet done so, asserting that collating the requested information was ‘extremely tedious manual work (sifting through credit card statements and assigning items on the statement to a trip) [which] must be done in the context of providing other FOI requests and the normal work of the ministry.’”
Mr. Liebaers pointed out that the law does not oblige a public authority to create a record when none exists and gives public authorities a measure of flexibility under unusual circumstances to protect them from requests that would “unreasonably divert resources” and allow them an extension of the 30 days to an additional 30 days.
“However, when a public authority agrees to disclose information, the actual release of the responsive record should proceed in a timely manner. If the financial records of the ministry relating to travel are as difficult to peruse as suggested, this would appear to warrant corrective action by the chief officer in respect of the manner in which the records in question are maintained and/or the procedures which apply to such records,” the decision by the Information Commissioner’s Office read.
The Information Commissioner’s Office found the ministry had failed to appoint an information manager and failed to ensure members of the public knew the name, function and contact details of the information manager.
“Despite making numerous attempts over a prolonged period of time to do so, both the applicants and the Information Commissioner’s Office found it impossible to determine who the responsible information manager at the ministry was. This state of affairs lasted for several months. For some time after a new information manager had purportedly been appointed, it remained impossible to confirm the name, function and contact details of the information manager,” Mr. Liebaers said in his written decision.
The Acting Information Commissioner also determined that the ministry failed to ensure that applicants were fully informed of the status of their applications for about four months.
“The fact that there was prolonged uncertainty surrounding the succession of one information manager by another would have accounted for some of these disruptions, but it cannot excuse the inordinately lengthy period of non-communication on the part of the ministry in fulfilling its duties under the FOI Law,” he said.
The ministry has 45 days from the date of the Information Commissioner’s Office’s 9 December ruling to appeal via a judicial review to the Grand Court.
Mr. Liebaers said his findings were “particularly troubling” in light of a recent order, made on 11 November, 2010, in which the Information Commissioner found “some very serious breaches” relating to a previous application to that ministry. “It also follows two invitations from the Commissioner to meet with the chief officer and information manager, which were not accepted.”
On 11 November, the Information Commissioner’s Office found that Mr. Bush’s ministry had failed to respond to a request for information, made on 11 August, 2010, on the benefits and expense allowances for Members of the Legislative Assembly. The office also found that another ministry, the Ministry of Community Affairs, Gender and Housing, had failed to correctly respond to the same request. Both ministries were given 10 days to respond and, according to the Information Commissioner’s Office, both had responded within that time frame.