So determined Information Commissioner Jan Liebaers in a recent ruling that draws a clear line where the Freedom of Information Law ceases to hold sway over government records.
While acknowledging that Cayman’s FOI Law cannot compel Cabinet to publish substantive sections of meeting minutes, Mr. Liebaers added that nothing in the FOI Law prevents it from doing so, either.
He said: “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. Although obvious progress has been made, I have raised the point on a number of occasions, that the government ought to do more to publish information proactively, both because doing so would ensure better communications and improve understanding of government, and also because it would reduce the need for the general public to utilize the formal, and sometimes slow, FOI process to gain access to significant information.”
What Mr. Liebaers’s ruling does, essentially, is to place squarely on the shoulders of Cabinet the responsibility for explaining its activities to the public.
No one can force Cabinet to reveal anything (other than certain factual reports members have considered) under the FOI Law, putting government in complete control of fashioning its own message.
As we’ve seen with records related to Operation Tempura, public officials will never give up power or negative information about themselves willingly. For working journalists, even the best-written FOI Law should be viewed as just one reportorial tool to get at the root of things. It should never replace the cultivation of sources, tough questioning and dogged research and investigating.
While the FOI Law and the related National Archives and Public Records Law are important statutes, the danger with open records laws is that they can give an illusion of openness or transparency when, in fact, the exact opposite is the case.
The situation delineated by Mr. Liebaers where Cabinet decides what it will or won’t tell the public, is potentially perilous — not necessarily to the media — but to governments themselves that are exceptionally poor at communicating with their constituents.
Instead of holding regular unscripted press conferences, this government seems to be relying increasingly on the state-owned media triumvirate of Radio Cayman, Government Information Services and CIG-TV, which Premier Alden McLaughlin stated are soon to be merged into one unit with responsibility for “the dissemination of government information and messages” — and whose credibility, accordingly, should be severely discounted by their audiences.
Perhaps the government will follow Mr. Liebaers’s non-binding advice (and the example set by Premier McLaughlin in the disclosure of his official credit card and travel expenses) and choose to release information about the many matters “of great public interest” that go before Cabinet.
Here’s one thing you can count on: If elected members don’t trust their constituents to share what they are actually doing behind closed Cabinet doors, they then expose themselves to voters drawing their own conclusions when they go behind closed doors at the polling booths in 2017.