Test looms over release of Cabinet documents

An ongoing open records battle for Cayman Islands Cabinet records being waged between the Caymanian Compass and government could be resolved quickly, depending on what local leaders decide.

According to the territory’s Freedom of Information watchdog, if the Cabinet wished to make any record it holds public, it can do so at any time.

Information Commissioner Jennifer Dilbert said there was a lot of confusion about the FOI Law and how it applied to Cabinet records during the run up to the May general election.

“Some of the participants on various panels were talking about us needing a law that would allow Cabinet to disclose records,” Mrs. Dilbert said. “Well, first of all, a public authority that owns a record can disclose it. Unless it’s someone else’s personal information that they need to protect, they can disclose what they like.

“The Freedom of Information Law does not prevent the disclosure of anything.”

The Caymanian Compass has previously sought to obtain the agendas and meeting minutes of Cabinet since January 2012.

The Compass filed its initial 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 Cabinet Secretary Sam Rose.

Mr. Rose sent his denial in a letter dated Sept. 13, right before the 30-day deadline for his response set forth under the law.

“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. “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.”

Without commenting on the specifics of the case, which the Compass is appealing to her office, Mrs. Dilbert generally opined that this is an area of the Freedom of Information Law that has not been tested previously, and about which there has been a great deal of misinformation placed in the public domain.

Section 19 of the FOI Law covers Cabinet records.

“It says a record is exempt from disclosure if it contains opinions, advice or recommendations prepared for the proceedings of Cabinet,” Mrs. Dilbert said. “A Cabinet paper that has been prepared to advise Cabinet is exempt, if they want it to be exempt.”

However, depending on the specific record, certain factual reports attached to those recommendations might not be exempt, according to the FOI Law.

Commissioner Dilbert also notes that a public interest test must be applied to those records. “If a matter falls within Section 19 (1)(a) – opinions, advice or recommendations for Cabinet – it falls within the public interest test. Even some of the possible exemptions of Cabinet papers … that is something that the public authority would have to look at.”

The public interest test is defined within the regulations attached to the FOI Law. It sets out factors in favor of disclosing government records, which must then be weighed against factors opposing disclosure. In cases where the factors are equal, the record must be disclosed.

Mrs. Dilbert also points out that the public interest test does not apply to “a record of consultations or deliberations arising in the course of proceedings of Cabinet.” However, that record has to contain actual deliberation or consultation.

“It’s not that everything that happens in Cabinet is going to be exempt,” she said.

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