Ministry’s open records response ‘verged on obstruction’

Issue reported to deputy governor

The Cayman Islands Information Commissioner’s Office said Friday that it will make a formal report to the deputy governor’s office alleging that government officials verged on a “complete denial” of a Freedom of Information applicant’s rights under the law and constitution after it took nearly two years for an FOI request for records related to the local pensions investment laws to be resolved.

As a result of the lengthy process to settle the open records request, a number of reports related to the National Pension Law [Investment Regulations] amendment – completed in 2014 – were released, but others were withheld. The Ministry of Employment, overseen by Minister Tara Rivers and managed by Chief Officer Christen Suckoo, holds the records. The ministry now has 45 days to release any remaining records sought or take the matter to court.

Aside from the issue of the records’ release, it was the time taken by the ministry in responding to the May 2014 FOI request and what were described as delay tactics that were of the most concern to Acting Information Commissioner Jan Liebaers.

“In short, the ministry’s manner of responding to the request and the search that was undertaken [for the records] were unacceptable, verging on a complete denial of the applicant’s rights and an obstruction of the process required under the FOI Law,” Mr. Liebaers wrote in an April 22 decision. “These deficiencies are systemic in nature and urgently need to be addressed.

“I intend to draw the deputy governor’s attention to the many problems [with the request],” Mr. Liebaers added, noting that Deputy Governor Franz Manderson sought to publicly encourage civil service departments in October 2015 to improve their responses to open records requests.

The Information Commissioner’s Office has not taken such a step since it was formed in early 2009.

Mr. Manderson declared in September 2013 that Cayman has an “open government” when asked about the progress of the territory’s first Freedom of Information Law, which took effect on Jan. 5, 2009.

In the case of the May 2014 open records query, the records sought were initially denied and then released in dribs and drabs as the process went along, spanning a period of more than 400 days, Mr. Liebaers said.

In one instance, the information commissioner said, the ministry’s records manager acknowledged that certain records sought by the FOI applicant existed but that “a key staff member refused to cooperate with [the manager] to make sure the ministry met its legal obligations,” which Mr. Liebaers found to be “most concerning.”

“I strongly suspect it was the prospect of the formal hearing that finally induced the ministry into action, almost 400 days after the request was first made,” Mr. Liebaers said. “[It is] a tactic that has been used in the past. This practice is not only contrary to the ministry’s obligations under the FOI Law, but also wasteful of everyone’s time and resources and a very counterproductive way for government to communicate with members of the general public.”

Apart from the ministry’s mishandling of the open records request, Mr. Liebaers said, there were some records sought via the FOI that eventually ended up being exempted from public view, either because they were deemed to be records of “free and frank” internal discussions or because their release would have prejudiced the effective conduct of the public service.

During the FOI hearing on the matter, ministry officials argued that the disclosure of the pension-related records would negatively impact government’s general ability to consult on public policy matters.

“When the government is in the process of identifying … legislative changes and formulating its views on the revisions that are in the best interest of the general public, this exercise should continue in a confidential manner that facilitates open communication. Otherwise, the result may negatively impact the overall policy development by subjecting the process to public scrutiny before decisions are fully developed.”

The applicant for the pension regulation records disagreed. He said the ministry failed to demonstrate how fully informing Cayman Islands employees about their pension funds could somehow be “necessary in the interests of good governance” and how it could “disrupt” the conduct of a process – management of retirement savings – created to benefit the public.

“[The ministry’s position] is very disrespectful to all employees in the islands,” the applicant stated.

Regardless of the arguments over the release of records, Mr. Liebaers said he could think of no “good reason” why records related to an ongoing review of a legislative process should not be readily at hand. In some instances, even requests from the Information Commissioner’s Office were ignored, he alleged.