The Department of Labour and Pensions broke the National Archive and Public Records Law by failing to keep proper records on internal discussions about proposed amendments to a pension plan trust deed, according to Ombudsman Sandy Hermiston.
Ms. Hermiston made this observation in a recent decision on a Freedom of Information Law request made in October 2014 for all records related to the Cayman Islands Chamber of Commerce Trust Deed and all proposed amendments made to the deed.
The request named a wide variety of records, including correspondence, reports, legal opinions, payments, memoranda, agendas and minutes of meetings, phone logs and conversation records, investigations, court actions, entities consulted, and records relied on by the Superintendent of Pensions in ensuring legal compliance and approving pension plan amendments.
The Department of Labour and Pensions initially refused the entire request, and later made some records available during the appeal process.
However, the department never provided records related to its internal analysis of proposed amendments to the Chamber pension plan trust deed, because the department did not keep such records. Department officials told the ombudsman that the internal process is largely verbal, and internal emails appear to have been sent only occasionally.
Ms. Hermiston took issue with this excuse, writing in her decision: “In my view, the practice of conducting business verbally renders the internal decisionmaking process opaque, unaccountable, and contradicts the requirements of section 6 of the National Archive and Public Records Law (2015 Revision), which demands that ‘Every public agency shall make and maintain full and accurate public records of its business and affairs ….
“The amendment of a pension plan trust deed has the potential to have significant impact on the members of the plan. It is a complex process in which the Department plays a key role in the review and approval of the requested amendments.”
The ombudsman recommended that the Department of Labour and Pensions records fully and accurately all its internal discussions on amendments to pension plan trust deeds from now on.
While criticizing the department for failing to record internal analyses, Ms. Hermiston did agree that other records related to pension plan trust deed amendments should be kept secret. These records include correspondence between the department and the attorney general’s chambers, which Ms. Hermiston agreed were legally privileged.
Ms. Hermiston’s decision marked the second time in the last several months that she has criticized a government entity for not properly keeping records.
In November, she denied an appeal for data on how many taxi drivers work for government because she said having the Public Transportation Unit retrieve such information would be an unreasonable diversion of its resources.
In that decision, she found that the Public Transportation Unit’s electronic records system has not been kept up-to-date and is unreliable.
“This revelation is troubling,” she said in that November decision. “It was explained that the system, while searchable by the name of the taxi operator, is aimed primarily at managing information on the vehicles used by operators, not about the operators themselves.”
Despite disagreeing with the ministry’s time estimate and criticizing the Public Transportation Unit’s record-keeping practices, the ombudsman still found that it would be an unreasonable diversion of resources to comply with the applicant’s request.
Ombudsman Hermiston added that she commends the ministry for its commitment to update its records moving forward, and that she expects the ministry to live up to this promise so statistics on taxi operators can be proactively published.
Due to the poor state of the records, the ombudsman added that she was “flagging” the ministry and the unit for an audit in respect of its record-keeping practices, the modification of its electronic system, and the proactive provision of relevant statistics.