The Cayman Islands government is refusing to disclose records of Cabinet meetings, in spite of Information Commissioner Jennifer Dilbert having stated repeatedly that those records are not wholly exempt from disclosure under the Freedom of Information Law.
On 19 July, the Caymanian Compass submitted an open records request for “Agendas and minutes of Cabinet meetings since 1 January, 2012”. On Wednesday, the Cabinet Office’s information manager denied the request. The Compass has sought an internal review from Cabinet Secretary Samuel Rose.
According to the information manager’s email, “disclosure of the Minutes and Agendas or excerpts thereof are denied as Cabinet Minutes and Agendas are exempt under Section 19 (1) (a) and (b) of the FOI Law. Records revealing Government’s deliberative process is an absolute exemption under the FOI Law as set out in Part III of the FOI Law, which protects this class of record entirely. The public interest test does not apply because this is an absolute exemption.”
The email goes on to say that the agendas and minutes will be exempt from disclosure for 20 years.
The section of the FOI Law that Cabinet cites states that a record is exempt from disclosure if it contains advice prepared for Cabinet proceedings or “a record of consultations or deliberations arising in the course of” Cabinet proceedings. The second part of Section 19, which Cabinet’s information manager does not cite in the refusal, stipulates that the exemption “does not apply to records which contain material of a purely factual nature or reports, studies, tests or surveys of a scientific or technical nature”.
‘We already have a law’
The information commissioner has declared on multiple occasions that Section 19 does not mean Cabinet minutes are entirely exempt.
Ms Dilbert addressed this topic in a September 2011 Cayman Islands Journal article, which quotes her as saying, “While something might be a record of proceedings of Cabinet, it’s not a record of consultations of deliberations of Cabinet.”
Ms Dilbert added that it is the deliberations of Cabinet (or any public board) that the FOI Law seeks to protect from release, not the decisions, according to the article.
“People on these boards have to feel comfortable to speak out and such,” she said. “But the part of the record that shows what decisions were made, that’s what is public. The part of the record that says ‘Mr. So-and-so said so …’, that is the part that is exempt.”
Ms Dilbert further elaborated on her opinion in a 21 March, 2013, Caymanian Compass article, in reaction to a candidate forum where participants, in Ms Dilbert’s words, “showed an overall lack of understanding of the entire law”.
She singled out candidates’ views that everything done in Cabinet is exempt from release under the FOI law, saying that is simply not true.
“It’s not just because something goes to Cabinet that it’s secret,” she said. “What was the most frustrating thing listening to the debate was that they were talking about records being secret and they’re not. Then they were talking about needing a law to change that and we already have a law.”
This isn’t the first time Cabinet has cited Section 19 of the FOI law in an effort to withhold records. In September 2009, Cabinet released information on expenses approved by Cabinet, but withheld the minutes of the relevant Cabinet meetings.
In May 2010, Cabinet refused to provide access to Cabinet minutes concerning government’s decision to pay contractors who had done work for scrap metal firm Matrix International.
In August 2011, Cabinet refused to disclose Cabinet minutes related to the Emerald Sound development project in South Sound.