The Finance Ministry has been ordered to release documents detailing concessions granted by government for major development projects dating back from 2017.
These records, which were initially under review, have to be released to the applicant seeking the information within 30 days, as ordered by Ombudsman Sandy Hermiston following her decision to uphold a Freedom of Information appeal.
An Ombudsman’s Office statement on the decision said the applicant in question, under the Freedom of Information (FOI) Act, had sought records relating to fee, duty and tax waivers negotiated between the government and several private developers from 2017.
The Ministry of Finance had released a significant number of records in redacted form to the applicant before and during the appeal process.
Cabinet and Caucus papers exempt
The applicant appealed the withholding of the information.
However the Ombudsman found that Cabinet and Caucus papers containing “opinions, advice or recommendations… prepared for or arising in the course of proceedings of the Cabinet” were appropriately withheld as they “were records containing personal information and information exempted from disclosure by other legislation”.
According to the Ombudsman’s decision, the redacted information consists of: names, business addresses, business emails and business phone numbers of attorneys, developers and their senior staff; names of staff/contact names; business names and addresses of freight and transportation companies used by the developers to import goods on a purchase order; freight documentation and HM Customs forms.
It also contained the names of shareholders, members, directors and officers of three developers (Leeward Holdings, The Water Mark, The Cottages); the name of an attorney certifying a document (The Water Mark); a driver’s licence number and the last four digits of a credit card number.
Hermiston found that while some of this information was not exempt under the law, it was undisclosable due to privacy or confidentiality clauses.
She outlined, in her ruling, what documents and information should be released and what should not.
The release on the ruling explained that the ministry included documents that were outside the scope of the information request; such as those created prior to 2017 or that involved agreements between private companies only.
“This caused additional delays as the Ombudsman had to sort out which documents were appropriate to be included and which were not. Time was also spent during the government’s internal FOI process consulting with third party commercial stakeholders (the development companies) over information that was not personal data,” the statement said.
A request for personal data would trigger the requirement to consult with third parties under the FOI regulations, but those regulations do not apply to commercial data.
“Public authorities are free to consult with whomever they wish, but there is no provision to delay responses beyond the normal timelines for consultation with commercial entities,” the Ombudsman wrote in the hearing decision.
The release also pointed out that there appeared to be a general misunderstanding of FOI principles in that the ministry applied some exemptions to information of certain developers, but not to similar information of others.
“Still other records were said to be exempted because the applicant had not demonstrated the “need” to obtain them. The FOI Act, established under the Cayman Islands Constitution Order, 2009, gives applicants the legal right to request access to information without considering who is making the request or why they are seeking those details,” the statement added.
Right To Know Day
Meanwhile, on Tuesday the Ombudsman marked international ‘Right To Know Day’ which celebrates the right of access to information such as the documents sought in the concessions request.
Since the implementation of the Freedom of Information (FOI) Act in the Cayman Islands, the Ombudsman’s Office said government has received more than 6,500 open records requests – and has disclosed public information in roughly half of those cases.
The FOI Act took effect in Cayman on 5 January 2009, granting individuals the legal right to request information held by public sector entities.
For more information about FOI in the Cayman Islands visit https://ombudsman.ky/foi
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