Marking Freedom of Information’s annual “Right to Know Week,” Acting Commissioner Jan Liebaers describes 2015 as a mix of record filings and growing awareness, but against a backdrop of potential administrative threats to the office.
The week – marked in 100 jurisdictions on six continents – kicked off Friday, Sept. 25, with a Cayman Brac visit to local heads of government departments and information managers. On Monday, internationally designated as “Right to Know Day,” Mr. Liebaers will attend an “outreach event” at the Health Services Authority.
On Wednesday, the acting commissioner will make a presentation at a Rotary and Rotary Sunrise breakfast meeting, and, finally, he will oversee “Outreach at the Market” at the Grounds in Lower Valley on Oct. 3.
“It’s been challenging,” he said. “We have an above-average number of requests, which, on the one hand, is good news because it means people know about the law and how it works and are using it.
“The bad news, though, is those numbers may reflect how transparent government is, and if it’s not, FOI is used more and is more important.”
In 2015, Mr. Liebaers received 702 FOI requests, the second-highest number since the office’s 2009 founding. In its second year, the unit received 739 requests. Last year’s total was 685.
Mr. Liebaers confesses response times have been “not very good,” attributing it to diminished staff and “difficult times.”
It has been nearly two years since the December 2013 departure of Jennifer Dilbert, the first information commissioner. The delay, he says, in replacing her on a permanent basis “shows very little respect for the FOI Office.
“The Attorney General has said we’ll look for someone, but very little has been done. That means a shortage in the office, and it’s very hard, we’re not fulfilling our role.
“We can only be reactive. We are doing our job, taking requests and doing appeals, but finding it impossible to be pro-active and keep an eye on government. We are really handicapped.”
In a formal statement issued to mark Freedom of Information Week, he said Cayman’s information law had been had been in effect more than 6½ years, marking “an opportune time to briefly reflect on the state of FOI in the Cayman Islands.”
The Halifax-based Centre for Law and Democracy, he said, had given Cayman’s FOI Law “exceedingly high marks,” while the Cabinet Office had provided fresh training and promises of new staff.
Requests were rising and the press “overflowing” with FOI-based stories, he said, but cautioned “some dark clouds may be on the FOI horizon,” pointing to the absence of a commissioner and proposed changes to the FOI Law.
The worries, he said, were “not least because of the plans of the cabinet to amalgamate the ICO with a number of other oversight bodies. In my opinion, these plans are ill-conceived at best.”
A $155,000, 240-page September 2014 report by accountants Ernst and Young recommended, almost as an afterthought, says Mr. Liebaers, joining the Information Commissioner’s Office, the Office of the Complaints Commission and a reconstituted Police Complaints unit – and possibly more, including the Office of the Auditor General.
“The proposal was on page 232 of the report,” Mr. Liebaers said, “and was never intended as a real recommendation, but somehow found its way to the top.
“No one has ever been able to give me an answer,” he said, to why the offices should be joined. “We explained it to Ernst and Young and they finally agreed, but government,” he said, had nonetheless embraced it.
He explained that the amalgamated office would be overseen by an ombudsman, who would, essentially be stripped of any power to compel compliance.
“We can give a binding order, but an ombudsman could only make ‘recommendations.’ What would happen if the Complaints Commission could only say ‘It would be nice if you would release those documents’? No one would ever release anything.
“We all need to be independent. The commissions should have order power and an ombudsman is totally wrong. It’s not a good idea.”
He minimized fears of changes to the FOI Law, efforts, in essence, to “de-fang” the law, making it more acceptable to government bureaucracy.
“After 6½ years of operation, we know what needs to be changed and what not, and it needs to be fine-tuned,” he said, pointing, for example, to separate legislation for data protection and even access to personal information.
Attempts to diminish the FOI Law, were, however, unlikely, despite periodic sniping from MLAs and party leaders.
“Quite honestly, a lot of civil servants think [FOI] is important; they ‘get it.’ I can’t say that government-at-large doesn’t understand it, but there is, of course, some resistance.
“When FOI was first passed, there was a lot of talk about ‘culture change,’ from a culture of secrecy to a culture of openness. There has been movement; we are maybe halfway there, not all the way, but we’re getting there. Things are better. We’ve come a long way.”