The Office of the Ombudsman has ruled that excerpts of Cabinet minutes relating to a planning-permission exemption for Smith Barcadere should be made public.

The decision came after an applicant was refused a Freedom of Information request for the release of the information.

The request was filed in June 2020. It had been reported in February last year that no planning permission would be required for a proposed, and later abandoned, plan to redevelop Smith Barcadere, also known as Smith Cove. Those plans included a parking lot, an arch at the beach entrance, walkways, additional bathroom blocks, a security office and a timber cabana.

Cabinet granted exemption from planning permission for the government-owned land in July 2018, a week after a community meeting was held at South Sound Community Centre to discuss the issue. The beach is among at least 12 sites for which government has granted planning-permission exemptions.

According to a statement issued by the Office of the Ombudsman on Tuesday, the applicant had filed an FOI request to access various records related to the Smith Barcadere (Smith Cove) Redevelopment Project, which included an extract of minutes related to Cabinet members’ decision on whether an exemption to the requirement to seek planning permission should be granted for the project.

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The Cabinet Office denied the initial request under section 19 of the FOI Act, stating that the extract was a record of deliberations arising in the course of Cabinet proceedings.

“The Cabinet Office did not conduct an internal review of the request as required by the FOI Act, which allowed the applicant to appeal the matter directly to the Ombudsman. The contested record in this appeal hearing was the extract, an excerpt of the Cabinet minutes in relation to this project, not the full record of the meeting minutes,” the statement from the Ombudsman Office said.

In reviewing the extract, Ombudsman Sandy Hermiston found that it did not document any Cabinet discussion, did not show how Cabinet reached its decision, did not state any matters being considered in that decision, and gave no details of Cabinet members’ discussions.

The statement noted, “These issues are important in determining whether the section 19 exemption of the FOI Act would apply. The Ombudsman found the wording of the section 19 exemption focuses on consultative or deliberative processes of Cabinet.”

Cabinet minutes are typically exempt from public disclosure under section 19 of the FOI Law, which states, in part, that “a record is exempt from disclosure if it contains opinions, advice or recommendations, or a record of consultations or deliberations; prepared for or arising in the course of proceedings of the Cabinet or the National Security Council or a committee of the Cabinet or the National Security Council”.

Hermiston also found that the Cabinet decision relating to the Smith Barcadere planning-permission exemption was already a matter of public record, as it had been reported in the local media.

“Additionally, the Cayman Islands Development and Planning Act requires any granted exemption from planning permission to be listed in the Cayman Islands Gazette, a public document. The Ombudsman found no evidence that gazettal of this decision occurred. However, if the project were exempted from planning requirements, the Act would have required that decision to be made public,” the statement from the Office of the Ombudsman said.

Hermiston added in the statement, “The FOI Act is in place to promote government openness and transparency and decisions made under this legislation should give due regard to that fact. Public authorities have an opportunity to argue against disclosure based on an exemption or other reason under the Act.”

The ombudsman ruled that the extract from the Cabinet minutes containing information on whether Cabinet granted planning exemptions in relation to the Smith Barcadere Redevelopment Project is not exempt under section 19(1)(a) of the FOI Act and that the Cabinet Office must disclose the extract related to this decision.

She also found that the Cabinet Office violated provisions of section 34 of the FOI Act when it failed to conduct an internal review of its original decision to deny release of the extract record.

Read the ombudsman’s full ruling here.

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