Former information boss speaks out
Signs of decay are beginning to appear in the structure and operation of the Cayman Islands open records regime, which was once lauded as the Freedom of Information leader in the Caribbean, Cayman’s former information commissioner said this week.
In an exclusive interview with the Cayman Compass, Jennifer Dilbert warned that the current commissioner’s office was being “starved” of resources by government and that a plan to merge that office with other government oversight agencies under one “super ombudsman” would make things worse.
“I don’t see it being workable, I don’t see it effecting any savings,” Mrs. Dilbert said. “We’ve seen [the] immediate effect of talking about the merger [of the information commissioner and complaints commissioner’s offices]. [Former Complaints Commissioner] Nicola Williams is gone, [Acting Information Commissioner] Jan [Liebaers] is at loose ends. You’re already undermining the office just by talking about it.”
Mrs. Dilbert, who left the civil service in December 2013, was Cayman’s first information commissioner after the Freedom of Information Law took effect on Jan. 5, 2009. Since her retirement, Mr. Liebaers – a foreign national – has served as commissioner on an acting basis. Full five-year contract appointments for the information commissioner’s post and the complaint commissioner’s position have not been made. The complaints commissioner’s office is now being run by an administrator. Mr. Liebaers’s contract expires this month.
The Progressives-led government has publicly supported a proposed merger of the two offices. Discussions have also been under way for some time regarding additional duties for the offices, including a police complaints function and a data protection regime.
Mrs. Dilbert said during an interview Tuesday that she could see combining police complaints with the local ombudsman’s office, and that combining data protection with the information commissioner’s duties was already in the works at the time she left government.
However, she said, putting all four of those tasks together under one department head or chief officer would result in confusion and poor decision-making.
“This ‘super person’ idea … might end up with the person making the ultimate decision not being the best person to do so,” Mrs. Dilbert said.
Whoever is selected for the post would have to maintain a certain expertise in open records law, data protection legislation, policing and ombudsman functions, all of which are specialized jobs that can involve legally complex decision-making.
“Who is going to have all of those skills?” Mrs. Dilbert asked.
In the meantime, prior to any final decisions being made on any merger, the information commissioner’s office is left in a “reactive” position, responding only to appeals of open records requests. What is being neglected, she said, is ongoing training of government staff members whose job is to initially respond to information requests.
This has led to a few recent mistakes with FOI requests, one of which has ended up in court and another where it appears a government agency has not followed the FOI Law, she said.
“The lack of continued training of Freedom of Information managers [is a problem],” Mrs. Dilbert said. “Between that and the support that information managers get from ‘higher-ups,’ it’s the structure that gives us problems, and we don’t have a minister championing our cause.
“[FOI] is something that is good for Cayman.”
Plans to have the information commissioner’s office, or whatever agency it is merged into, handle Cayman’s proposed data protection regime could also be affected if the person ultimately responsible for data protection is not seen as “independent.”
Data protection refers to the safeguarding of personal information by both private and public sector entities. Cayman’s proposal for a data protection law is based on 1995 data protection rules drawn up by the European Union.
The advantage to enacting data protection is that Cayman’s financial services industry will gain EU “adequacy status” for privacy protection, making it ostensibly more attractive to foreign investors, particularly those from European countries.
However, part of the adequacy status attainment requires that the person in charge of data protection is entirely independent. Mrs. Dilbert said problems could arise if the information commissioner’s office, or the “super ombudsman,” takes over data protection duties under the current system.
“If they muck about with the independence of data protection, it won’t get that [adequacy] status,” she said.
Freedom of Information laws in the Caribbean have largely struggled through years of delay, political resistance and government bureaucracy.
However, during a first-of-its-kind FOI conference in Kingston during 2013, Laura Neuman of the Atlanta, Georgia-based Carter Center – a nonprofit public policy development initiative – said the Caribbean region had “come a long way” since the start of the 21st century on open records laws. Ms. Neuman considered the Cayman Islands’ open records regime to be one of the Caribbean’s “greatest success stories.”
In the first four years of FOI in Cayman, from January 2009 to January 2013, more than 3,000 requests for information were made for government records. By way of comparison, Belize has had an FOI law since 1994, but only a small number of open records requests have been made over the past two decades.
In the Bahamas, efforts to pass an open records law flopped, while in Barbados, St. Lucia and St. Kitts proposed laws have been drafted but not yet considered by the various governing bodies.
“How all of these countries have fared [with FOI] is still in question,” Ms. Neuman said.