New ombudsman takes over partially created office

Cayman’s new public sector/private sector watchdog will inherit a newly created office Wednesday that has only about half of its intended functions up and running.

Sandy Hermiston, who arrived in Cayman over the weekend, will officially take up the post created under the Ombudsman Law, passed by the legislature earlier this year.

Ms. Hermiston will supervise the currently understaffed Information Commissioner’s and Complaints Commissioner’s offices, combining their roles under one central authority.

The ombudsman’s office will also handle – at some point – responsibilities for data protection, public complaints about the police service and employees’ whistleblower complaints against government entities and private sector companies.

The latter three responsibilities will not be managed by the ombudsman’s office right away.

The entirety of the Ombudsman Law will come into effect Wednesday, except for the section that deals with public complaints against the police. No date has been set for the implementation of that function.

Police complaints

It is estimated that hundreds of public complaints against the Royal Cayman Islands Police Service filed since 2010 will have to be reviewed by the new ombudsman, since no one has been legally allowed to hear those cases. The issue involves the failure of the government to follow amendments to the Police Law in 2010, which called for the appointment of the territory’s first police public complaints commission.

The commission was never appointed, largely due to funding and staffing difficulties. The RCIPS could still hear internal complaints filed by its own officers, but the police Professional Standards Unit no longer had the legal authority to hear public complaints once the Police Law was changed. Since the public commission was never appointed, it did not hear any of the complaints either.

Since the law changed, the police Professional Standards Unit has received complaints and preserved the evidence from those complaints, to the extent it could. Some of the complaints filed with the Professional Standards Unit were resolved between the parties, but that is only in cases where the person complaining about the police agreed with the settlement suggested.

Data protection

This law, which generally aims to preserve privacy rights of individuals, will not take effect until sometime in 2019.

It will be the ombudsman’s responsibility to handle both public education and preparation efforts for the law’s implementation and also to “police” complaints of instances where data use violations are alleged after the law is put in place.

The legislation and accompanying regulations have major implications for local businesses and international firms in Cayman, as well as for any outside entities that have data processing functions here.

The law’s enactment is seen as vital to the financial services industry, which is keen to access European markets – most of which have been operating under data protection laws since the mid-1990s.

Under the new law, those who handle personal records have the responsibility of using that data “fairly,” processing the information only for the legal purpose for which it was provided. There are criminal penalties, including fines of up to $250,000, for breaches of the law.

Whistleblowers

Since the Whistleblower Law was passed in November 2015, the Cayman Islands government has been unable to enforce its terms because the legislation has never been put into force.

The ombudsman’s office has been assigned responsibility for fielding whistleblower complaints once the law takes effect in February 2018.

The legislation generally directs the process of making complaints of mismanagement, ethical breaches or suspected criminal activity to certain individuals in the community, which the ombudsman’s office would then have the responsibility for administering.

The ombudsman is given the powers of a court in investigating reports of wrongdoing, called disclosures, and in monitoring compliance with the law. If the office finds evidence of wrongdoing, it would either refer the findings to the person responsible for disciplinary proceedings, refer the matter to the commissioner of police (if criminal wrongdoing has occurred), or to the governor if the misconduct was committed by a high-ranking government official such as, for example, the police commissioner.

Public and private sector employees cannot make frivolous complaints, or reports that are designed to embarrass their employers. Any report of wrongdoing will not qualify for protection against retaliation unless the report is made “in the public interest,” according to the legislation. In addition, if it would normally be an offense to disclose information or if the information disclosed is considered legally privileged, the person disclosing it would not be protected.

Whistleblowers who disclose information deemed to be in the public interest will have specific protections in the bill against what is termed “detrimental action” – retaliation – by their employers. Detrimental action can include actions causing loss, injury, intimidation, harassment, discrimination, disadvantage or any adverse treatment.

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