Ombudsman: Historical land claims should be public

The Ombudsman has ruled government’s Lands and Survey Department must make historical claims on local land open to the public.

The decision follows a freedom of information request by a member of the public who asked for access to a file relating to his great-grandfather’s land claims on Grand Cayman.

The Lands and Survey Department refused the request, stating the information’s release would “undermine the entire system of land registration”, prejudicing the effective conduct of public affairs and leading to the unreasonable disclosure of personal information, the Ombudsman said in a decision released on Friday.

The claim file sought by the applicant had been created during the Cayman Islands cadastral survey of the 1970s. That survey, the Ombudsman said, formed the basis for Cayman’s modern land registration system.

“Government records showing transfers of property since the modern land registration system was developed are already publicly accessible, but documents that relate to the original claims when the Register was first created have traditionally not been made available,” Ombudsman Sandy Hermiston said.

Hermiston rejected the department’s arguments and ordered the release of the records within 14 days.

The applicant had explained in his request for information that he intended to investigate and, if possible, challenge the ownership of certain parcels of land.

The Lands and Survey Department stated, “the disclosure of the records to the Applicant would defeat the purpose of having the current registration system… [which] serves as a certificate of full indefeasible and valid ownership”. It would “indicate to the public that there is a possibility that the initial registration of the title could be called into question if a third party is entitled to access same.”

However, the Ombudsman countered that a thorough review of the issue “found that a decision to make the records public need not consider what the applicant intends to do with them”.

“The question of what value the claim file might or might not have to a member of the public is not a relevant basis for restricting access,” Hermiston said in her ruling.

She also noted that the Lands and Survey Department had provided no convincing evidence that making the records public “would lead to a collapse of the land registration system or the unreasonable disclosure of personal information”.

“The applicant sought access to the requested records in relation to an ownership claim over his great-grandfather’s land, a matter that has been the subject of his family’s investigations for several decades,” said Hermiston. “However, the time period for challenging the adjudication of (land) title has long expired and it’s likely that the disclosure of the responsive record would promote greater understanding of the decisions made at the time the cadastral record was created.”

In her ruling, the Ombudsman pointed out also that Cabinet had issued a minute stating that new requests for Crown land grants based on alleged pre-adjudication titles would not be entertained by Cabinet after 14 Feb. 1999.

The Lands and Survey Department also had sought to argue that the claim file was created nearly 50 years ago for the “sole purpose” of creating the Lands Register, and it had not been intended for those records to be publicly reviewed. These statements were also disputed by the Ombudsman.

“This argument could be used to withhold virtually any government record sought under the FOI Law,” said Deputy Ombudsman Jan Liebaers. “The very essence of Cayman’s FOI Law is the assumption that a government record is a public record unless there is a valid reason to legally withhold it. We could find no such reason in this case.”

Read the full Ombudsman hearing decision here.

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