EDITORIAL – Broken record: Officials must obey FOI Law

Acting Information Commissioner Jan Liebaers

“We now have an open government,” said Deputy Governor Franz Manderson back in September 2013, declaring that the Cayman Islands’ Freedom of Information Law was a success.

In retrospect, it appears that some of Cayman’s civil servants did not receive the deputy governor’s message.

Here’s a gentle reminder: In the Cayman Islands, FOI is the law of the land.

The FOI Law happens to be, in our opinion, a decent piece of legislation.

We also believe that Acting Information Commissioner Jan Liebaers has discharged his duties admirably during his time in office.

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That being said, regardless of how well a law is worded or how diligent a government overseer is, at the ground level – that is, where the public sector interacts with the private citizenry – the true test of a transparency regime is whether the applicant receives the public records he requested. Recalcitrant bureaucrats, as they say, “have ways” of thwarting the process.

In other words, a good FOI Law is a step toward good, accountable governance, but is no substitute for it.

We’ll highlight two egregious instances (that the Compass reported on last week) where civil servants attempted to deny information that is the rightful property of the people.

The first involved a request for retrieval of emails from the Department of Children and Family Services, which, in turn, enlisted the help of the Computer Services Department. First, officials attempted to charge the applicant $1,620 for 15 hours of work, then winnowed it down to $540 for five hours – or a rate of $108 per hour.

Finding that the hourly wage for a computer services administrator would actually run around $28-$29, Mr. Liebaers said, “No explanation is provided as to why $108 is being charged per hour or how that figure was arrived at.”

Although it is frustrating to see the government attempt to grossly overcharge a member of the public for what, to us, appears to be a routine request, the second example is far more concerning because it involved systemic failures at the ministerial level.

In brief, in May 2014 a person requested records related to local pensions investment laws, which are held by the Ministry of Employment, led by Minister Tara Rivers and Chief Officer Christen Suckoo. What followed was a textbook exercise in officials’ delay tactics, to the extent that two years later, some of the relevant documents still have not been released.

What Mr. Liebaers found most concerning, a view we share, is that “a key staff member refused to cooperate with [the manager] to make sure the ministry met its legal obligation.”

The ministry’s conduct was so abysmal that Mr. Liebaers said he intends to file a formal report with Deputy Governor Franz Manderson about the issue.

The deputy governor is not a bad place to start, but if we were filing the complaint, we would include in that correspondence the police and public prosecutors. The subject title of our email might read: “Section 55, Freedom of Information Law.”

That section states: “(1) A person commits an offence, if in relation to a record to which a right of access is conferred under this Law, he – (a) alters or defaces; (b) blocks or erases; (c) destroys; or (d) conceals, the record with the intention of preventing its disclosure. (2) A person who commits an offence under subsection 91) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for a term of six months or to both such fine and imprisonment.”

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

That’s true. But when the Cayman government actively tries to keep public records out of public sight, it’s disrespectful to every single person in the Cayman Islands.

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  1. Open records law. Oh please.

    Open records begin with open meetings. The public will never have true access to the blocked goingson of govrnment until it is allowed to attend meetings of public officials. A sterling example of which is a situation where government officials meeting with representatives of “plugged in” developers to decide the fate of our island for decades to come. In such meetings and in secret alliances deals are cut to shift costs of development back and forth capturing tax revenues to enhance private development.

    Cayman will never have open records until it has Open Government and that means Open Meetings and the island will continue to be owned by those “In the know”.

  2. One of the big problems is that the FOI Law contains no really big stick the ICO can brandish at the delinquent departments. Section 55 mostly goes over ground that is already covered by general provisions of Cayman Islands Law that are rarely, if ever, used. Civil Servants also know that the FOI Law is unpopular with their bosses, their elected representatives and the Governor’s Office so obstructing it has in many cases simply become part of their job description. As an added complication any complaint would be dealt with by public authorities who themselves come under the scope of the FOI Law so are probably compromised. Would we really expect one of the most prolific offenders, RCIPS, to prosecute themselves?

    What is missing in the FOI Law are any kind of realistic sanctions against public authorities who deliberately mislead both the applicant and the ICO over the grounds on which material is being withheld – in simple terms blatant abuse of the process is unpunishable.

    In particular here I’m think about the fiasco over the Aina report. The original excuse for non-disclosure made to CNS in 2011 was that the contents might be defamatory. That was expanded to include things like the possibly that the report might harm relations between HMG and CIG. When the documents were eventually released last month, after over $1million had been spent on legal fees, all of this turned out to complete bull. In reality we still have no idea why the FCO and the Governor’s Office decided to make the documents public after so much time and money had been wasted trying to keep them secret and, thanks to the limitations of the FOI Law, there is no easy way anybody can be held to account for this deliberate obstruction of the FOI process.

    In the UK the ICO is an enforcement agency – in one notable case they successfully took the Crown Prosecution Service to court for non-compliance with the Data Protection Act. This is what the ICO needs here. The ability to tackle problems head on, without having first to go crying to the Deputy Governor, RCIPS or the CPS.