Although the Cayman Islands government may have access to certain fuel pricing information from local distributors Sol Petroleum and Rubis, that information is not currently considered to be public, Acting Information Commissioner Jan Liebaers ruled last week.
The decision follows an open records request from a member of the public for fuel cost invoices Sol and Rubis provide to the customs service in order to pay the proper duty on the gasoline and diesel they import.
Mr. Liebaers, in his review of the matter, said both importers have provided fuel invoices that show the cost of imported fuel to customs since last year. He also noted that while legislation was recently passed requiring a number of other specific costs the fuel importers pay, the law stopped short of requiring that information be published for the general public.
Mr. Liebaers agreed with the fuel companies that the release of such pricing data to the public could constitute “an actionable breach of confidence” on the part of the importers. In other words, Sol or Rubis could be sued by other fuel suppliers they deal with if that information was released.
Both fuel companies, along with government lawyers, responded to the request for information. All sought to withhold the data.
“Anyone with access to the [fuel] invoices can calculate the wholesale price Sol pays for the supplies,” Sol representatives argued in their submissions to the information commissioner. “Although there are further intermediary costs, a comparison between the wholesale price and advertised price or the price CUC publish[es] in their fuel factor statements will yield a close approximation of Sol’s ‘mark up’ on the supplies.
“The confidentiality of this information is of critical importance to Sol’s ability to effectively compete and operate its business in Cayman.”
Rubis representatives argued that the open records request was an attempt to use the Freedom of Information Law, which does not apply to private companies, to grant back-door access to proprietary commercial information, simply because the customs service holds the records.
Mr. Liebaers pointed out that neither Sol nor Rubis provided any specific contracts that set out the rules of confidentiality for their pricing information.
The information commissioner said he was also “puzzled” to learn that some cost information from the fuel distributors is already supplied to government, since lawmakers claimed many times that this information was not available to them.
The Dangerous Substances Handling and Storage (Amendment) Law, 2015, would require fuel importers to divulge far more detailed information about their operations to government than they currently provide. The law as passed states: “The chief petroleum inspector shall … collect from importers, and compile, analyze and abstract, information on fuel prices and pricing methods and provide such information to the minister.”
The minister in question would be the elected official in charge of the petroleum inspectorate. Currently that is Planning Minister Kurt Tibbetts.
At the request of the petroleum inspector, the importer is required to provide information on the price of all fuel imported and sold and the “pricing methods” used by the importer in the sale of fuel to retail operators and consumers. Those costs can include: initial costs, cost of freight, insurance and brokerage fees, customs duties, estimates of fuel in stock, and the amount and type of fuel to be imported in the next shipment.
In addition to a fine, the bill would allow government to sue the importers to force them to provide the information required. The legislation does not require that the information be made available to the general public.