A Freedom of Information request has revealed potential gaps in the Cayman Islands government’s public records keeping system.
In response to an open records request from the Caymanian Compass, the Department of Tourism indicated that it does not keep tabs on e-mails sent on government computers using private e-mail accounts, nor does it keep track of text messages sent from government phones.
Private e-mails, texts
According to the response: “The Department of Tourism does not track or retain e-mails that have been sent to or from a Web-based e-mail address such as gmail.com, hotmail.com, etc., unless those e-mails were sent to or from the Department of Tourism’s domain; caymanislands.ky.
“The Department of Tourism also does not track or retain text messages or BlackBerry messages sent to or from government cell phones or from cell phones on wireless plans paid for by government.”
The legislation governing the preservation of government documents defines a “public record” very broadly. According to the National Archive and Public Records Law, a public record is “information, in any form, created, received, or maintained by a public agency in the course of, or as evidence of, a transaction or activity effected or undertaken in the conduct of its business or affairs”.
According to this definition, if a civil servant or public official were to use a personal e-mail account in order to conduct government business, then those e-mails would be public records. Similarly, if a civil servant or public official were to conduct government business by way of text messages, then those text messages would be public records.
The Cayman Islands National Archive is charged with administering the law, including being responsible for issuing record keeping standards for the public sector and monitoring the management of public records.
When contacted for comment on the tourism department’s policy on not retaining Web-based e-mails or text messages, the National Archive said in an e-mail, “CINA and the CI Government has published general e-mail guidance, however there is no specific guidance for Web-based addresses or text messages.”
Additionally, “Under s.6 of the National Archive and Public Records Law (2010 Revision), every public agency is required to ‘make and maintain full and accurate public records’. Therefore, CINA always strives to facilitate that a high standard of records management practices are adopted across the entire Public Sector, thereby ensuring good governance of these information assets.”
The “Government E-mail Policy” is published on the National Archive’s website in the form of an August 2006 administrative circular from then-Chief Secretary George McCarthy. According to the policy, “E-mails sent or received by civil servants using government resources are the property of the Cayman Islands government. As such, all civil servants must follow appropriate rules for making, transmitting and keeping e-mails.”
According to the National Archive’s “E-mail Guidance”, which also appears on the website, an e-mail is an official record if it contains information about a policy change; contains a decision relating to work; contains department advice to the public, a private organisation or another public entity; requires the civil servant to take action related to work; or if it contains information that will be used to a reach a decision relating to work.
During the past year, the United Kingdom government, which in many ways has oversight of the Cayman Islands by virtue of its status as a British Overseas Territory, has clarified that personal e-mails and text messages dealing with government business are public records and subject to the Freedom of Information Act. In December 2011, the UK’s Information Commissioner’s Office published a guidance on official business held in private email accounts.
UK Information Commissioner Christopher Graham said, “It should not come as a surprise to public authorities to have the clarification that information held in private e-mail accounts can be subject to freedom of information law if it relates to official business. This has always been the case – the act covers all recorded information in any form.”
Recently, UK media reported the UK Cabinet Office will soon release a guidance clarifying that the Freedom of Information Act concerns the nature of information, not the format (paper, electronic or etc.) in which it is held, according to the BBC. This guidance follows the UK government’s disclosures to the Leveson Inquiry that public officials routinely conducted sensitive government business via private e-mail and text messages, according to the Independent.