Cayman Islands Information Commissioner Jennifer Dilbert has urged government to maintain anonymity of open records requestors and to keep fees charged for the release of such information minimal.
Those comments came in a position paper that was completed in September, but which was only released to the public this week. Mrs. Dilbert also made public changes her office has suggested for Cayman’s Freedom of Information Law, which first took effect in January 2009.
The law requires a government review within 18 months of its enactment. Mrs. Dilbert’s office said the paper was released following an announcement by government that a subcommittee reviewing the FOI Law would accept public comments on the law through 8 May.
“The FOI Law is already being used by a large number of people and it is important to understand the issues that might be under review,” Mrs. Dilbert said.
Thus far, any meetings of the FOI subcommittee and of a select committee of the whole Legislative Assembly have not been open to members of the public to attend. Meeting dates for the subcommittee have also not been made public. An open records request for minutes of the subcommittee’s meetings was deferred.
Mrs. Dilbert’s position paper essentially provides some talking points in the public debate over the Freedom of Information Law.
“The commissioner does not support any amendments to the FOI Law, which would restrict or eliminate requestor anonymity or change the current fee structure applicable to FOI requests,” Mrs. Dilbert’s position paper stated.
The removal of anonymity provisions from FOI applications would change the focus of open records applications, Mrs. Dilbert fears. She said, right now, information managers – who process open records requests – are required to only focus on the records themselves. If no exclusion or exemption applies to those records, the right of access to information must prevail.
“The identity of the applicant cannot, in any way, be pertinent to this determination,” Mrs. Dilbert writes in her position paper.
Moreover, revealing the names of information applicants could have a “chilling effect” on their ability to seek open records, reducing their right to use FOI as set out under Cayman’s Constitution.
“It is especially important to ensure that applicants do not feel intimidated into refraining from applying for access to government records…and face possible public exposure and/or retribution,” Mrs. Dilbert said.
The United Kingdom’s FOI Law does not accept requests from individuals who are obviously not using their real names. However, in practice, UK public authorities do not seek to prove an applicants’ identity and in any case the applicant’s name is considered irrelevant to the request for information.
Mrs. Dilbert said Cayman’s small size – approximately 55,000 residents – makes the use of people’s names more sensitive compared to the UK, which has a population of approximately 60 million.
Cayman’s FOI Law already allows for fees to be charged for information requests, but it requires those fees to be “reasonable” – not to exceed the actual cost of preparing and reproducing the record. The fees can be set in regulations to the law by the Cayman Islands Cabinet.
Mrs. Dilbert admits that there is a perception among some members of the public that FOI “costs too much”. However, she said this generally results from three underlying factors: the relative ineffectiveness of a department information manager, the state of public authority record-keeping, and the small amount of information that is proactively published by the government.
“The commissioner believes that it would be unfair to make applicants pay for government’s own inefficiencies,” Mrs. Dilbert’s position paper read. “These three causes of wastefulness should be fully investigated and corrected first.”
Excessive FOI fees could lead to the ultimate elimination of the right of access to government records, particularly by the underprivileged of society, Mrs. Dilbert states.
“The negative consequences of charging a new fee would outweigh the advantages of the small amount of revenue gained,” she said.
A number of areas were identified as problematic within the FOI Law by the information commissioner:
Exemptions to the release of information relating to “international relations” are not clear.
Applications of personal information and public interest tests in the law should be clarified.
Public authorities should document when the chief officer of a ministry or portfolio is involving in making a decision to release a record. This should be done because any appeals of a decision will then be sent to that same chief officer.
The time period for internal reviews within public authorities should be reduced.
Eliminate “excessive delays” in the release of third party information.