Onus placed on government to release records
An open records request for the agendas, minutes and decisions of Cayman Islands Cabinet meetings made in July 2013 has been rejected by the Information Commissioner’s Office after nearly a year-and-a-half of arguments.
The Cayman Compass newspaper requested agendas and meetings of Cabinet minutes dating from Jan. 1, 2012 to Dec. 20, 2012. Through various attempts at mediation, that request was narrowed to eight separate meetings of Cabinet, the Cayman Islands highest governing body. Other records that fell under the scope of the initial Freedom of Information request were either released or taken out of the newspaper’s request for information.
Eventually, Acting Information Commissioner Jan Liebaers winnowed the open records request to three areas of Cabinet papers that were determined to be exempt from release under section 19(1)(b) of the Cayman Islands Freedom of Information Law, 2007. That section exempts the release of records that relate to “consultations and deliberations arising in the course of proceedings of the Cabinet.”
The sections of the records titled “deferred papers,” “new papers and notes,” and “any other business” were withheld. That particular section of the FOI Law is not subject to a public interest test as defined under the legislation.
However, Mr. Liebaers also noted that nothing in the current open records law prevents Cabinet members from making decisions or proceedings of the governing body if its members wished to do so.
“Even where an applicant may not have a statutory right to obtain access to a record or part thereof, a public authority can still decide to disclose it voluntarily,” Mr. Liebaers wrote in his decision on the matter.
“In my opinion, voluntary disclosure is particularly appropriate where a matter of great public interest is concerned, such as many of the matters discussed and decided by the Cabinet. It would reduce the need for the general public to utilize the formal, and sometimes slow, FOI process to gain access to significant information.”
For instance, the open records applicant in this case pointed out that the Turks and Caicos Islands, another British Overseas Territory, is constitutionally required to release a summary of the decisions from its Cabinet meetings, a process which is handled through the governor’s office. The Turks and Caicos Islands does not have an open records law.
Mr. Liebaers noted that an entirely different legal context applies in the case of the Turks Cabinet records. “I do recognize the sad irony in stating this fact in the particular circumstances of this case,” he said. In requesting the Cabinet records, Cayman Compass representatives argued that the FOI Law does not currently state that all Cabinet records are completely exempt from disclosure. The newspaper also stated in its arguments that meeting agendas and minutes are “the most basic records” that allow the public to know what government is doing.
“Refusing the public access to these key records would be throwing a cloak over the entire government’s operations and would render any further pretenses of public sector transparency as laughable,” the newspaper argued.
Mr. Liebaers did not agree. “Openness and transparency are not a matter of all or nothing, but rather require a careful balancing of public interests involved on both sides of a particular issue and such generalizations are not very helpful.”
The information commissioner also took the Cabinet office to task over its response to the request, which has now been settled a full 17 months after it was filed. First, the commissioner noted that the office appeared to be quibbling with the applicant over definitions in the request, rather than providing assistance or seeking clarification of the matter.
“Although the precise word ‘motion’ is not used in the context of Cabinet deliberations, it would, in my view, be reasonable to expect the Cabinet office to assume that the applicant is interested in the formal proposals put to the Cabinet and, if in doubt, to seek clarification from the applicant on the matter,” Mr. Liebaers said. “It appears that the Cabinet office did not do so.”
Also, Mr. Liebaers noted his displeasure with the Cabinet office’s “blanket approach” toward applying exemptions on the records, rather than identifying specific reasons individual records should be withheld.
“That the Cabinet office has persisted in this approach in its new submission, after being cautioned about it as recently as July 22, and being given a chance to do better, is of grave concern as it is disrespectful of my earlier decision and contrary to the demands of the FOI Law,” he said.