Commission balks at FOI inclusion

Recommendations that the various public standards commissions created to support good governance under the Cayman Islands 2009 Constitution Order be included under the territory’s Freedom of Information Law are falling afoul of some of the commissions.

The Commission for Standards in Public Life opined in a report made public in the Legislative Assembly this week that it should have been consulted prior to recommendations that it be included under the FOI Law. Right now, the constitutional commissions are not subject to open records requests.

It is a matter of some dispute as to whether the constitutionally created commissions are subject to Cayman FOI Law or not.

A review of Cayman’s open records law was begun under the previous government administration, but none of the recommendations were ever drafted into a revised FOI Bill.

“[The commission] is, by its very nature, charged with the duty of promoting openness, accountability and transparency on the part of public officers and government as a whole,” the commission’s August report to the Legislative Assembly noted, adding that it publishes the minutes of all meetings conducted, except where matters discussed are of a “privileged or sensitive” nature.

However, legislation creating enabling powers for the commission will place the quasi-judicial body in an even more sensitive position relating to personal disclosures from public officers and elected officials, the report notes.

The Standards in Public Life Bill, 2013 seeks mandatory disclosure of a conflict of interest with respect to “any matter that comes up for discussion” as soon as the matter appears on an agenda for any public meeting. The bill requires the individual with the conflict to “leave the place in which deliberations are taking place” and orders them not to participate directly or indirectly in any deliberations touching on the matter.

The proposal also requires “a person in public life” to, within 90 days of assuming the functions of office, make a declaration to the commission of income, assets, and liabilities during the previous year. For a candidate seeking election to the Legislative Assembly, that declaration should be made before the person files nomination papers. After the first declaration, no later than June 30 of each year, the declaration must be updated, according to the bill.

“[Any changes to the FOI Law] must ensure that, with the impending passage of the long-awaited enabling legislation, the relevant corresponding exemptions must be put in place to protect the personal information relating to those individuals … [to whom] the bill and the register and interests will apply,” the commission report states.

The Freedom of Information Unit recommended in its proposed changes to the FOI Law that all quasi-judicial boards, commissions and tribunals operating in the Cayman Islands be subject to open records requests but that “the adjudicative or operational records of these bodies should be exempted.”

The legislative subcommittee that reviewed the proposal agreed with it.

“It is the belief of the commission that the current exemptions [based on personal information] in the [FOI] Law do not adequately cover the needs of the commission once the Standards in Public Life Bill is passed into law,” the commission stated in its report.

Woven into this debate is the pending passage of the government’s Data Protection Bill. The initially proposed data protection legislation was withdrawn last year and revised bill is expected to be presented shortly.

The data protection legislation sets a much together standard for personal information exemptions.

According to the original draft of the bill: “Personal data shall be obtained only for one or more specified, explicit and legitimate purposes and shall not be further processed in any manner incompatible with that purpose or other purposes.” There are certain exemptions to that in the bill, included among them exemptions for use of data for journalistic and artistic purposes.

The original bill defined personal data, seeking to replace the definition of that subject contained within the Freedom of Information Law: “Personal data means data related to a data subject and includes an expression of opinion about a data subject and any indication of the intentions of the data controller or any other person in respect of a data subject.”

It also further defines sensitive personal data as a person’s racial or ethnic origin, political opinions, religious beliefs, membership in a trade union, mental or physical health, sex life or any alleged commission of crime.