“Mickey Mouse” will apparently be able to continue making his [or her] open records requests to the Cayman Islands government.
A long-awaited report of a legislative committee and subcommittee that reviewed Cayman’s first Freedom of Information Law was made public last month, though it received little notice in the weeks just prior to the general election.
The six-person subcommittee that reviewed the law recommended both the anonymity provision for those requesting public information should remain and that no fees should be charged for any FOI request. Those recommendations, among a host of others, were then approved by a committee of the entire Legislative Assembly. Any changes to the actual law would have to be drafted first and then voted on by the full assembly.
In fact, the government’s Freedom of Information Unit noted in its submission to the subcommittee that the “majority of public authorities” favoured keeping the anonymity clause, which has led to open records requests from individuals identifying themselves as “Mickey Mouse” or by other, more outlandish, names. Only in specific cases already identified in the law, such as instances where releasing information could endanger the safety or health of a person, would a requester’s identify be required.
The anonymity provision was one of the areas disputed by former Premier McKeeva Bush, who commented on the issue during a June 2010 finance committee meeting prior to a vote on the $653,000 budget for Information Commissioner Jennifer Dilbert’s office.
“(We’re) paying a lot of money, Mrs. Dilbert, for people to pound you up and giving people information they don’t know what to do with it, but just to be slanderous, vindictive and dirty.
“This is not the only cost. You should all bear in mind the tremendous costs of searching that the civil service has to do, coupled with the time it takes to do so – all to make people beat you up and add to what is not there,” he said.
“The committee is not in support of the introduction of application fees for any FOI request,” according to the subcommittee report on the issue.
Information specific to an individual can be protected from disclosure to the public if it falls under the protected definition of the FOI known as “personal information”.
However, some personal information is still releasable if it is determined to be in the public’s interest to do so. Decisions to release or not to release that data are done on a case-by-case basis.
Government attorneys proposed that a “non-exhaustive definition” for personal information be added to the law for cases where there had been an “unreasonable disclosure”.
The “unreasonable disclosure” matter is dealt with in the draft Data Protection Law. However, that draft has not come before the Legislative Assembly for approval and is not likely to be put into effect for some time after its introduction.
Various security and criminal investigative-related exemptions are made for the police and courts under the current FOI Law. However, it leaves out other law enforcement authorities, such as prisons or immigration, who might have similar needs for such an exemption.
The government’s FOI Unit recommended that the exemption be extended to “any other public authority with security and intelligence service”.
The subcommittee agreed with the recommendation and the full House committee accepted.
The legislative subcommittee also said the FOI Law should not be used to “circumvent” usual protocols for disclosure of court evidence, but noted the director of public prosecution’s office had expressed concerns regarding open records requests for certain information its office could not prevent from release under the current law.
The subcommittee agreed that any records held by the prosecutor’s office relating to ongoing court matters should be withheld until they are presented in court. Only records dealing with general administration of the office should be disclosed under FOI, the committee recommended.
Boards and commissions
There was some question put to the House committees as to whether appointed boards that have “quasi-judicial functions” should be subject to the open records law.
The subcommittee decided that those boards and commissions should be subject to the FOI Law, but that they should benefit from relevant disclosure exemptions based on their work.
“It was … agreed that the adjudicative or operational records of these bodies should be exempted [from release],” the subcommittee concluded. “Operational records” were not defined by the subcommittee or the committee of the whole House.
The subcommittee also recommended that the various commissions created under the 2009 Constitution Order, such as the Human Rights Commission, the Commission for Standards on Public Life and the Constitutional Commission, should be subject to the FOI Law. The law has been interpreted to mean that those bodies – appointed by the governor – are not subject to FOI.