The Information Commissioner’s Office has launched its own investigation into the release of wage data for more than 20,000 work permit holders by the Department of Immigration.
Acting commissioner Jan Liebaers said the inquiry, independent of a series of legal proceedings initiated in connection with the data release, would seek to establish if the proper procedures were followed before the information was disclosed.
A spreadsheet of data including job titles, start dates, nationalities and salary information, though not the names, of all work permit holders in the Cayman Islands was released to the Cayman Compass and a member of the public following an open records request.
Mr. Liebaers said the FOI law had a natural bias towards openness and transparency but did not endorse disclosure of all information held by public authorities.
Records that can be exempted from release under the law include information that is personal or commercially sensitive.
It is the first time the Information Commissioner’s Office, which routinely investigates public authorities for withholding data, has conducted an inquiry into a decision to release information.
“We certainly have the authority to investigate and believe it will be helpful to lay out what was done wrong, if anything, in this case,” said Mr. Liebaers.
“There is an issue here as to whether the proper procedures were followed in relation to the personal information that appears to have been released in this particular case.”
Mr. Liebaers acknowledged there were legitimate concerns that the legal proceedings, which include a judicial review of the decision to release the data, would impact other FOI managers.
“This, unfortunately, may make them hesitate to err on the side of disclosure. They do have a legal obligation to apply the law and that means they can only withhold parts of records that are actually exempted.
“If a record is not exempted, they do have an obligation to release it. I hope this won’t deter information managers and their chief officers from releasing information that should be released.”
He said the law and regulations outlined step-by-step procedures to be followed where the release of personal information was contemplated, as well as the conditions under which information could be exempted.
While there is legal protection under the FOI law for staff of the Information Commissioner’s Office who release information in “good faith,” similar explicit protection does not exist for FOI managers within government departments. But Mr. Liebaers believes those who follow the guidelines in the law and regulations will be protected against a legal challenge.
The spreadsheet released by the Department of Immigration is currently subject to a Grand Court injunction following a legal challenge by four companies – Maples FS, KPMG, Ernst & Young, and Butterfield Bank, who have argued that the data is personal and commercially sensitive and should not have been released.
The FOI manager of the Department of Immigration is facing a judicial review of the decision to disclose the information.
Meanwhile blogger Kerry Tibbetts, who published screenshots of the spreadsheet on a Facebook group called I am Caymanian Where are my Rights?, is facing a separate legal action seeking damages for “breach of confidence” and a permanent injunction against further publication of the information.
In a 33-page judgment published Thursday, Chief Justice Anthony Smellie sets out the reasons for granting leave to apply for judicial review to the four companies and issuing an injunction against the dissemination of the information pending a further decision from the court.
He writes that he was satisfied, based on submissions from the plaintiffs, that the spreadsheet arguably contained personal information and that an injunction was required because the plaintiff’s chances of success were “very high.”
He adds, “The FOI officer’s decision to disclose the information is very arguably unlawful and/or unreasonable and is very arguably likely to be quashed by the court upon Judicial Review. The FOI officer has admitted in her affidavit that ‘appropriate redactions should have been made to the spreadsheet to ensure that personal information and legitimate commercial interests were adequately protected.’”
The judgment contains extracts from an affidavit from Layman Daniel Scott, senior partner at Ernst & Young, setting out the company’s objections to the release of the data.
It states, “If employees knew what every work permit holding employee was paid, this could lead to workplace disputes, bad morale and complaints.”
It further argues that Ernst & Young would be disadvantaged when hiring future employees who would likely insist on receiving the highest salary available for a given job description. The affidavit, which the judge writes is similar in nature to those sworn by the other plaintiffs, adds, “Ernst & Young wishes to safeguard its employees, some of whom are likely to be identifiable from the information in the spreadsheet, from facing a situation in which the exact level of their salaries is publicly available information.”