Cabinet Secretary Samuel Rose has refused to produce copies of minutes from Cabinet meetings, saying it would constitute “an unreasonable diversion of resources” to comply with the open records request, even if it were in the public interest to do so.
The Caymanian Compass is seeking the agendas and minutes of Cabinet meetings since January 2012.
In his denial of the application, Mr. Rose said, “this public authority does not have the capacity to respond to this request within any timescale prescribed under the FOI law. Each agenda or minute would likely have to be considered on a case-by-case basis to determine the appropriate exemptions as well as the application of the public interest test, thus demonstrating an unreasonable diversion of resources.”
In his letter, Mr. Rose said it is his responsibility to keep the minutes of Cabinet meetings and to relay conclusions reached during the meetings. He said ministries and portfolios are not provided with the Cabinet minutes, but with extracts from the minutes that contain decisions pertaining to their entity only.
The extract “is itself considered a confidential document,” he said.
On Monday morning, the Compass requested comment from Premier Alden McLaughlin but as of press time Monday afternoon had not received a response.
The Compass filed its request under the Freedom of Information Law in mid-July. In mid-August, the Cabinet office denied the request, and the Compass sought an internal review from Mr. Rose.
Mr. Rose sent his denial in a letter dated Sept. 13, right before the 30-day deadline under the law for his response.
“The minutes of Cabinet meetings contain opinions and viewpoints raised by members of the Cabinet. They also contain decisions which emanate from the consultations and deliberations of the advice and recommendations, which were exclusively intended for the proceedings of Cabinet,” Mr. Rose said.
He said, “Where items are raised verbally by a minister, (which is permissible), again any decision taken in relation thereto, while taken collectively by the Cabinet, could very well reveal opinions, advice or recommendations put forward by a particular member of the Cabinet.”
Information Commissioner Jennifer Dilbert has said on several occasions that Cabinet records are not wholly exempt from disclosure, especially the part that shows what decisions are made.
A September 2011 Cayman Islands Journal article quotes Ms Dilbert as saying, “While something might be a record of proceedings of Cabinet, it’s not a record of consultations of deliberations of Cabinet.”
Mr. Rose denied the Compass’ request not just for the minutes of the Cabinet meetings, but also the agendas.
“As it stands, each agenda item outlines what the Cabinet would have deliberated in any given week, and therefore reveals government’s deliberative processes in a way which is covered by the exemption. Consultations in the course of Cabinet proceedings could also be disclosed, given that the agenda may include records of presentations made to Cabinet,” he said.
Mr. Rose said several exemptions to disclosure under the Freedom of Information Law could possibly apply to Cabinet records, for example, “records affecting security, defense or international relations,” “law enforcement,” “legal privilege,” “commercial interests,” and “heritage sites.”
He stressed that disclosing the agendas and minutes of Cabinet meetings might hinder future deliberations of Cabinet.
This section of the law “exempts a record where the disclosure would, or would be likely to, prejudice the maintenance of the convention of collective responsibility of ministers; disclosures would, or would be likely to inhibit the free and frank exchange of views for the purposes of deliberation; legal advice given by or on behalf of the attorney general; or its disclosure would otherwise prejudice or would be likely to prejudice the effective conduct of public affairs,” Mr. Rose said.
He said disclosing the agendas of Cabinet meetings might cause members to raise important items verbally during meetings in order to avoid having those important items appear on public documents.
“If items appearing on Cabinet’s agenda are to become open records, then matters of significance may no longer appear on the agenda and will be raised as any other business,” he said.
Mr. Rose conceded that many of the exemptions could be overridden if disclosure of the records is in the public interest. He lists some reasons in favor of disclosing the records, including promoting greater understanding of processes and decisions of Cabinet, providing reasons for decisions taken by Cabinet, promoting greater government accountability, deterring or revealing wrongdoing or maladministration, and revealing untrue, incomplete or misleading information or acts of a public authority.
However, he said it would be too difficult to go through agendas and minutes of Cabinet meetings over an 18-month period, saying that would be no less than 75 meetings, with between 1,700 and 2,000 agenda items.
“This would literally be a task which would require months of uninterrupted work and would no doubt require legal advice to be sought in relation to the multitude of questions that would arise in relation to potentially exempted information,” he said.
Mr. Rose did not offer to provide a properly redacted agenda or minutes from any one Cabinet meeting, and did not ask the Compass if it would agree to narrow the time period or negotiate an extended timetable to fulfill the open records request.
The Compass has appealed Mr. Rose’s decision to the Information Commissioner’s Office.