Podcast – Know your rights: Cayman’s Freedom of Information Law

In the Cayman Islands, any individual holds the right to request information of government and public authorities. This right first came into effect in January 2009 through the Freedom of Information Law, later amended in 2018 to include data protection considerations.

This freedom provides not only an important tool for journalists interested in government accountability, but it also empowers members of the public to access records and their own personal information.

To further understand this right and the minimum expectations set out by law, the Cayman Compass spoke with the Ombudsman office, the entity entrusted with FOI conflict resolution and ensuring access to this right. (Download full interview here or listen below.)

Ombudsman Sandy Hermiston and Deputy Ombudsman Jan Leibars explain some basics of the law and how to navigate information requests.

What rights does Cayman’s Freedom of Information Law establish?

The law creates a general right to access, Leibars explains.

“Section 6 of the law says that basically anyone has the right to request a record from government,” he says, adding that Cayman’s law focusses on access to documents.

“It means that people can actually, by and large, see an actual copy of an actual document rather than just get the information conveyed to them.”

The law specifically refers to a record, which includes information in writing; maps, plans, graphs or drawings; photographs; discs, tapes, film, or other devices containing sounds, data or images that are held by a public authority.

Listen to our full interview with Hermiston and Leibars:

What kind of information can be requested of a public authority?

First, Hermiston recommends simply asking for information to determine if it can be released.

“I think the first message is, they can ask for anything and that they shouldn’t try to self-censor in terms of whether they want the information or not,” Hermiston says.

“They should feel free to ask for it, and then the limited exemptions may be applied by the government department or agency.”

After an applicant reaches out and enquires about a record, an information officer will be able to evaluate the request and inform if a record can be released. Hermiston adds that some FOI law exemptions, explained later, are discretionary, so the best way to find out if a record is available is to ask.

“They could say, well, there is this exemption that allows us to choose not to disclose it, but regardless of that exemption, we’re going to disclose it anyway,” Hermiston says.

“It’s not mandatory in most cases that the exemption be claimed by the government. So, I think the most important message is ask and they’ll tell you.”

How is information requested?

Requests should be submitted in writing, rather than by phone, to the designated information manager of a given public authority. For example, a record regarding schools might be submitted to the information manager for the Department of Education Services. The Cayman Islands National Archive maintains a list of public authorities and contacts that are responsible for managing records. This list is reposted to the Ombudsman website, www.ombudsman.ky, and is updated regularly.

View the June 2020 update of FOI contacts.

Find the email contact for the relevant authority and compose a message explaining the information you would like to access. Try to be clear about what you want, but remember, the information managers should also help guide the process. If the wrong public authority has been contacted, for example, there shouldn’t be a problem.

Jan Liebaers is in charge of Information Rights for the Ombudsman.

“There’s actually a process within the FOI law where the information manager that receives a request should transfer it to the appropriate authority if it’s not them,” Leibars says.

“So, if they don’t have the information and they know that, say, their ministry does, then they should forward that on to their ministry.”

How long will it take to receive a response?

The FOI law sets out specific timeframes, based on calendar days and inclusive of public holidays, for receipt of requests to be confirmed and for a response to be provided.

Confirmation of receipt should be made within 10 calendar days. A response to the request should be provided within 30 days.

“If they don’t respond within the 30 days, the person who’s made the request has the right to come to us and say to us, we asked 30 days ago for something and it wasn’t responded to,” Hermiston said. “That allows our office to engage. Prior to that, it really is between the person requesting and the entity that they’re requesting the information from.”

The law specifies, “the response of the public authority shall state its decision on the application, and where the authority or body decides to refuse or defer access or to extend the period of thirty days, it shall state the reason thereof, and the options available to the applicant”.

What if the record I want hasn’t been created yet?

The FOI law pertains to existing records and does not obligate government to create a new record to fulfil a request. For example, if a statistic is not noted in government records, there is no expectation that the number be calculated.

“We’ve had a couple of cases like that just recently, where requests have been made for some sort of statistics, and the law really does not require the government to create a new record,” Hermiston says.

“What they can do then is just provide you with the information so you can try to figure it out. But we have seen a number of instances where the government has actually taken the time to put something together and create a new record in response to an FOI request.” 

When can a request be denied or information deemed exempt?

A public authority may deny a request in certain circumstances. The law states that a request can be denied if it is “vexatious” (troublesome or intended to cause annoyance), a similar request has recently been fulfilled for the same person, compliance with the request would unreasonably divert resources, or the information is already in the public domain.

If a record is deemed inaccessible or undisclosable for a certain reason, the public authority must consult with the applicant and where possible, help reformulate the request to enable some level of access.

“Under the law, you have to, as a public authority, where possible, provide partial access,” Leibars says.

“So, you may be only able to say that certain parts of a document are exempted and then other parts may have to be disclosed.”

If an authority decides to defer or delay access to a record, the applicant should be notified within 14 days of the decision and be informed, where possible, of the timeframe of the deferment.

A number of exemptions are also outlined in part III of the FOI law. These include matters impacting security, defence or international relations, certain law enforcement, legal and court records, and personal information subject to data protection.

“The FOI law was amended in order to work together with the data protection law to ensure that they weren’t conflicting in any way,” Hermiston says.

Leibars adds that around one-third of requests where exemptions were applied related to release of personal information.

Individuals do, however, have the right to request information about themselves.

“If you ask for information about yourself, any entity in Cayman, government and private, needs to be able to respond to that request,” Leibars says. 

What if I don’t agree with an exemption or denial?

When all other means of access have been attempted and an applicant remains unsatisfied, the Ombudsman office may be contacted to assist, investigate a decision or mediate.

A request for appeal can only be accepted by the Ombudsman after an FOI request has been made to a public authority, refused, and an internal review has been requested with the authority.

After these steps have been exhausted, the Ombudsman can step in and help explain the applicant’s rights.

“We have a pretty good working relationship with most of the information managers in government,” Hermiston says.

“Often we are able to begin an informal resolution or early resolution process, which can help move it along and sometimes even avoid the formal appeal process.” 

Resources:

Freedom of Information Law, 2018 Revision

Ombudsman

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