Cayman Cabinet fighting FOI request for same
The governor’s office of the Turks and Caicos Islands, a British Overseas Territory, released details of all the decisions from a Cabinet meeting held last Wednesday, something the Cayman Islands Cabinet has not done despite open records requests filed by the local press.
The statement on the Cabinet meeting is broken into 15 “bullet points” describing action taken by the country’s governing body.
For instance, one point noted: “Approved a proposal for a feasibility study on adjustments to the Statutory Minimum Wage and agreed to establish an Advisory Committee on minimum wage…”
Another stated: “Approved the development agreement for the Third Turtle Resort Marina and Casino subject to some amendments.”
The list of the Cabinet decisions was not long on details and advises that further information would be provided by ministers “in due course.”
Turks and Caicos governor’s office spokesman Neil Smith said the governor is required by the territory’s 2012 Constitution Order to release the Cabinet statement after each meeting and that similar reports have been issued since around November/December 2012.
The Cayman Islands 2009 Constitution Order has no similar requirements for disclosure.
In September last year, Cabinet Secretary Samuel Rose refused to produce copies of minutes from Cayman 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 sought, and is still seeking, the agendas and minutes of Cabinet meetings from January 2012 through July 2013.
In his denial of the Freedom of Information request, Mr. Rose said: “This public authority does not have the capacity to respond to this request within any time scale 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 only to their entity.
The extract “is itself considered a confidential document,” he said.
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.
Further from Mr. Rose’s 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. 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.”
There are divergent views within the government and without as to whether Cabinet meeting minutes or records or Cabinet decisions should be immediately released to the public.
According to the territory’s first Freedom of Information watchdog, if the Cabinet wished to make public any record it holds, it could do so at any time.
Information Commissioner Jennifer Dilbert said last year that 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.”
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.
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. 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.
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.