An attempt to block the public release of minutes from a government-appointed board meeting has highlighted the methods public authorities can use to withhold information.
The Information Commissioner’s Office, on 24 March, ordered the Cayman Islands National Insurance Company to release redacted portions of minutes from its 7 September, 2010, board meeting to a requester.
CINICO had earlier released some portion of the minutes, but had declined to release a section that was placed under the heading ‘private and confidential Executive Session’, according to the Information Commissioner.
The request, according to the man who made it, John Douglas, sought to obtain records of the board’s decision regarding an application for key employee status on behalf of one of CINICO’s employees.
Typically, the Caymanian Compass would not release the name of an individual making an open records request, but in this case Mr. Douglas has given permission to do so.
Information Commissioner Jennifer Dilbert ruled that the Executive Session of the meeting minutes should be released since it essentially did not reveal any free and frank deliberations of the CINICO board that normally would be shielded under the FOI Law.
“There is no apparent reason for the redacted information to be any more private and confidential than the un-redacted information [that was already released],” Mrs. Dilbert wrote in her decision.
Moreover, the commissioner’s office noted that attempts to block release of minutes from a public authority’s meeting simply by placing it under the heading of ‘Executive Session’ has no practical effect under Cayman’s FOI Law.
“A public authority is not at liberty to cordon off…a section of its activities or records and post a ‘private and confidential’ label on information in the name of protecting free and frank deliberation, thus effectively placing those activities or records beyond the reach of the FOI Law,” Mrs. Dilbert wrote.
Assistant Information Commissioner Jan Liebaers put it another way: “They can’t just put up a sign that says ‘no trespassing’, and just because you say that, doesn’t mean that it’s protected.”
At the same time, the information commissioner was at pains to point out that there are still protections within Cayman’s open records law for the free and frank discussions of board members.
The CINICO board argued to the commissioner that the release of the private and confidential Executive Session could prejudice future deliberations of the board.
“The board must have the freedom and protection to determine the best course of action for the organisation without harmful interference, which could occur if certain information is made public,” the board wrote in submissions to the commissioner’s office.
Mrs. Dilbert said it was simply the case in this instance that the board’s minutes were not protected from release under the FOI Law.
“Although the FOI Law provides a clear legal imperative towards openness, transparency and accountability…the law appropriately balances these public interests against mean of protecting certain interests,” she wrote.
Executive Session meetings developed in the United States Senate in part of the governing body’s meeting that dealt with business from the president of the United States, the country’s chief executive.
Typically, these sections of the senate’s meetings were held in private, but in later years that tradition has been abandoned.
However, many local and state governing bodies in the US use “executive session” deliberations for certain types of business – generally those dealing with personnel or contracts – to go behind closed doors and debate those topics.
The deliberations are kept secret, but any decisions made in those closed-door sessions must be announced immediately after the meeting is completed.
Generally, executive session is only used in bodies that hold open meetings, hence the need to have executive session to deliberate in private.