Records’ release at issue
In what’s become an increasingly strange case involving an open records request for Port Authority of the Cayman Islands records related to cruise berthing facility negotiations, the Port Authority now faces investigation by the Information Commissioner’s Office.
“The Port Authority repeatedly failed to meet deadlines and cooperate fully with the [information commissioner] in dealing with the appeal, and in my opinion, showed a total disregard for the policies and procedures of the Information Commissioner’s Office and the Freedom of Information Law,” Information Commissioner Jennifer Dilbert wrote in a sharply-worded decision on the case released last week.
The Port Authority has publicly denied that it violated either the spirit or the letter of the FOI Law.
The basis of the investigation, under Section 44 of the law, is partly that the Port Authority provided the open records applicant with a “very limited disclosure” consisting of two letters and a redacted set of board meeting minutes. However, Mrs. Dilbert said it did so “all the while indicating the existence of further ‘remaining records’”.
A number of other procedural matters were raised by Commissioner Dilbert in relation to the request, which was made by a local media applicant. “The procedural issues that arose during this appeal are unprecedented, both in number and in complexity,” Mrs. Dilbert wrote. “[They] raise some very important issues with respect to compliance with the FOI Law.”
The saga began when Mrs. Dilbert’s office ruled in December 2011 that certain records related to the ongoing port negotiations, sought by a different applicant, had to be released under FOI.
The initial information requester sought a number of records from the port authority regarding negotiations between the government, GLF and China Harbour Engineering Company over various proposals to build a cruise ship berthing facility in George Town.
Three of the records, including financial assessments of the project, and legal advice given about the GLF construction proposal, had already been released to the public outside the open records process. The only matter remaining at the time was the request for the port authority meeting minutes.
In a bizarre twist, the requester – who had fought to get the records through a six-month process under Cayman’s Freedom of Information Law – backed out and told Mrs. Dilbert’s office they were no longer seeking access to the records.
Another applicant then sought to access the meeting minutes and other port authority records related to the China Harbour-GLF-government negotiations. Because of this, Mrs. Dilbert decided to restart the open records process regarding those requests rather than challenging the Port Authority in court as she had initially proposed to do.
That second request for information came in late January. The decision regarding the partial release of the records now concerned in the Freedom of Information request wasn’t made until Thursday, 25 October.
In February of this year, the Port Authority did disclose five sets of board meeting minutes on its website in response to the first part of the open records request. However, the records applicant noted that the “full request” sent in January had not been met.
In April, the Port Authority released two letters and a redacted set of minutes from a December 2011 board meeting. It indicated at the time the existence of other “remaining records”, according to the information commissioner. A legal back-and-forth ensued that ended in July with the Port Authority stating it would not disclose any further information “voluntarily”.
Mrs. Dilbert said the Port Authority requested some type of “formal order” before representatives of her office were even allowed to inspect relevant records related to the second FOI request. Some records were sought to be exempted from release by the Port Authority, according to Mrs. Dilbert, because authority members had given the documents to their attorneys and therefore considered them protected under various legal privileges.
“Were this the case, any public authority, when in receipt of an FOI request, or even prior to a request, would simply be able to pass the responsive records to their legal representatives and declare them privileged, thus making the FOI Law ineffective,” she said.
What happens now
In the end, the information commissioner’s office had to “plow through” 244 tabs of records supplied by the Port Authority to determine whether each one was exempted or able to be disclosed to the public under the open records law.
Some records were considered duplicates because the information had already been released, others were exempted from disclosure, many more were not and were ordered released.
The Port Authority now has until 9 December to either release the relevant documents to the FOI applicant or seek to challenge the matter in the Grand Court by way of judicial review. Thus far, no decision by the information commissioner’s office has been challenged in such a manner.
“The entire thing has been ridiculous from the start,” the open records applicant stated in submissions to the information commissioner’s office. “Even if no further documents are released, the issue has become more about [the Port Authority’s] deliberate recalcitrance than anything else.”