Freedom of Information: Ready for upgrade

 A review of Freedom of Information processes may be incumbent upon local FOI managers, many of whom appear to be less-than-versed in what the law requires or the limits it may place on compliance.

The Cayman Compass itself, for example, has recently encountered both extremes. We are not persuaded the errors are purposeful or intended, at the one end, to obfuscate or impede information applications, or, at the other, to invoke private-sector outrage and a court review at an over-release of information.

Let us explain:

A couple of weeks ago, the Compass filed a series of questions to three government agencies. None of them responded, and two explicitly said they would never respond.

Another – and unrelated – request went to the Office of the Solicitor General, who also rejected our approach. The reason offered was reasonable and largely cogent: Part of our request was to see documents in respect of a case still in process.

However, the stated reason for the rejection of the other part was that our request had not been phrased in terms of seeking specific “records.”

In any case, inquiries to the Information Commissioner yielded a fascinating response. Under section 7 of the Freedom of Information Law, a request for information from a government agency does not have to specify it is an FOI request in order for it to qualify as an FOI application.

Nor does it have to be addressed to an FOI manager; nor does it need to name the FOI Law or any information officer.

Indeed, the FOI website, the most basic of information tools, explicitly states: “There is no requirement to state that a request for information is made under the FOI Law.”

Additionally, if the request is not couched in terms of seeking “documents” or “records” – or fails to specify how or where those documents may be held – the FOI manager is obliged under regulation 21 of the Freedom of Information General Regulations to contact the applicant, helping him or her rewrite the request so that it can be properly processed.

None of these things was done in any of the cases cited above, despite the Office of the Information Commissioner flatly stating that government information managers “should know this.”

Again, we do not accuse anyone of willful obfuscation or an effort to sidestep our requests, but we are less than persuaded that the dozens of FOI managers throughout central government, statutory authorities and government-owned companies are fully knowledgeable about their responsibilities under this complex law.

Our fears are underlined by the enthusiastic response – some may say “over-response” – of the Immigration Department to our mid-February request for records of the salaries of Cayman’s more than 20,000 work-permit holders.
The department did not merely comply in all respects with the request, but the information manager also provided job titles, start dates and nationalities – although not the names – of every work-permit holder in the Cayman Islands.

This generated a whole different kind of FOI-related lawsuit. Instead of complaining that government had failed to comply with a request, the court action – filed by Ernst & Young, Maples FS, KPMG and Butterfield Bank – said too much had been released, and sought a judicial review on the grounds it was proprietary and commercially sensitive to the four companies. (The publisher of the Compass, in a sworn affidavit, supported the position of the four plaintiffs.)

We have to ask: If information managers do not know the basic facts of compliance, what else don’t they know? How far do these inadequacies extend? And can our Information Commissioner do anything about it?



  1. Mack, I don”t see any reference to Tempura here but as you raised the subject……

    One of the interesting things is that, with one notable and on-going exception, FOI very effectively blew the whistle on Tempura. Thanks to the Cayman Islands’ FOI Law and FOIA in the UK a large amount of Tempura material moved into the public domain that more than a few people would have preferred to have seen kept under wraps.

    The problem here was not failings in FOI but the inconsistent response to the material released under it. On one hand what looked like blatant abuse of the audit process in 2009 was revealed but the person currently responsible for sorting it out has chosen to ignore the findings. In contrast another previously secret aspect of Tempura was pursued through not only the Grand Court but also the High Court in the UK. The shortcomings here were not with FOI but with the official handling of material disclosed by it and that needs dealing with.

    My main issue with FOI has obviously been the Aina report. That has turned into what I regard as another expensive fiasco not unlike Tempura itself. It is hard to know quite where the wheels fell off this but in my opinion two public authorities employed top-end lawyers on what was effectively a blank cheque basis and threw something like a million dollars away in the process. To prevent this happening again there must either be financial limits imposed or an alternative system, such as a publicly-funded tribunal like the one I attended in the UK two weeks ago, needs to be introduced.

    The other concern must be the handling of appeals under the FOI Law. Under FOIA here the applicant/appellant retains control throughout the appeal process but in the Cayman Islands, based on my experience, appealing an FOI decision automatically passes control of the request to the ICO. The original applicant is then shut out of all further deliberations – that is definitely something that needs changing.

    The thing never to lose sight of is that FOI is always going to be an evolving process. Just under 10 years ago (FOIA came into force in the UK on 1 January 2005) I was preparing appeals over refusals to disclose information that is now freely available online. In the decade since FOIA kicked in over here it has been so effective that several attempts (ironically, one of the most notable was made by the now former head of the Cayman Islands’ London office) have been made to dumb it down. Thankfully, not only have they been resisted but the scope of public access is actually still being increased. The problem is that this process works both ways and what you need to ensure is that any changes serve to increase access through the FOI Law rather than reducing it.