The Department of Immigration

A “blatant lack of respect for the laws of the Cayman Islands” was revealed in the Immigration Department’s response to an open records request for documents that took more than a year to process.

“There is no excuse for it,” Acting Information Commissioner Jan Liebaers said in a ruling on the document request issued last week, adding that the department’s apparent contempt for the open records process shown in this case would be reason enough to publicly disclose the record.

The Immigration Department responded on Monday: “The finding from the [information commissioner] on this particular Freedom of Information request highlights decisions and timelines that fall outside the standard we are expected to deliver. The department and the now Ministry of Human Resources & Immigration will adjust our procedures to ensure we are in compliance with the FOI law going forward.”

The case began in May 2016 when a local company requested information seeking details of a fine levied against it by the Immigration Department’s enforcement section. The department initially denied access to the record and then, according to the information commissioner, took no further action until late November, when an appeal was made to Mr. Liebaers’s office under the Freedom of Information Law.

In December 2016, the ministry overseeing immigration at the time disclosed some of the records but withheld others, resulting in a protracted negotiation that ended in a dispute over whether legal advice given to the Immigration Department could be disclosed.

Mr. Liebaers’s office convened a hearing on the matter to allow both sides in the dispute to present their case.

During the hearing process, the Immigration Department never gave its reasons for withholding the remaining documents, as it is required to do, Mr. Liebaers said.

“The department’s approach runs afoul of the basic principles of the Freedom of Information Law,” Mr. Liebaers wrote in the ruling. “The FOI Law requires that a public authority which withholds any record from disclosure must provide legal reasons.”

Not only does the FOI Law require such reasons, but section 19 of the Cayman Islands Constitution Order, 2009, requires that all government entities must provide reasons for their decisions to show they are procedurally fair, lawful, proportionate and rational.

“Given the clear violation of these statutory obligations and procedural steps, which were communicated to the department, it is hard to imagine how any public authority can defend its position to withhold a requested record well over a year, in the end simply to refuse giving reasons for doing so,” Mr. Liebaers said, pointing out that the Immigration Department typically responds to more open records requests than any other government department and should have known how to proceed.

“Under these circumstances, the department’s refusal to provide reasons for withholding the [documents requested] can only be described as willful, egregious and unlawful,” Mr. Liebaers wrote. The information commissioner pointed out that while the Immigration Department’s resources are strained in dealing with the backlog in applications for permanent residence and work permits, it is no excuse for what occurred in this case.

“In my mind, the department’s refusal to provide reasons for withholding the requested record demonstrates a blatant lack of respect for the laws of the Cayman Islands, the Freedom of Information Law and the Information Commissioner’s Office,” Mr. Liebaers wrote.

In the end, the department was not required to disclose the legal advice given to it, although it was earlier required to disclose the remainder of the records it held.

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