Ombudsman Sharon Roulstone has ruled that the public’s right to know about government agreements with private sector companies takes precedence over commercial interests.
The decision follows an appeal by an applicant under the Freedom of Information Act who had sought records from the Cayman Islands Airports Authority relating to the licences, rights and services the CIAA had authorised to be provided by private companies at two Cayman Islands airports since 2008.
According to a statement by the Office of the Ombudsman, the original FOI request in July 2021 had focussed on certain records at Owen Roberts International Airport and Charles Kirkconnell International Airport related to ground handling services, such as baggage handling, fuelling, hangar services and aircraft maintenance.
The CIAA had previously disclosed records related to the applicant’s request but withheld information contained in authorisation letters sent to ground handling services providers, which it said related to private commercial interests.
Roulstone found that the commercial interest exemptions CIAA had claimed did not apply to the information in the authorisation letters and other records requested. She also found that much of this information was already in the public domain and that the public interest in disclosing the records was greater than the commercial interest in withholding them.
“The promotion of public understanding of processes and decisions of public authorities, the promotion of the accountability of public authorities and the deterrence of maladministration… will be enhanced by disclosure of the redacted information,” the decision stated.
It added, “In fact, it seems logical that greater openness will promote greater and fairer competition between providers interested in GHSPs [ground handling service providers], which should reduce the costs to the public purse.”
The relevant section of the FOI law under which the CIAA initially refused to disclose the information states that records relating to commercial interests are exempt from disclosure if they would reveal information of a commercial value, which “would or could reasonably be expected to be, destroyed or diminished if the information were disclosed”; or it contains information “concerning the commercial interests of any person or organisation (including a public authority) and the disclosure of that information would prejudice those interests”.
The applicant stated that he was seeking only the list of services and the location of services that the CIAA has authorised the ground handlers operating at either airport to carry out, not financial information relating to the commercial activities, contracts, revenue generation or fees.
The Ombudsman pointed out that the applicant “merely seeks to understand what services each ground handling service provider is authorised to provide”.
While the CIAA disclosed the body of the authorisation letters, including the name of the
addressee company in each letter, it redacted the name of the ground handling company executive in charge, the location of a planned meeting, the airport(s) where the ground handler is allowed to operate, and the services allowed to be carried out.
The CIAA had claimed that all the redacted information in the authorisation letters was “clearly” commercial in substance, and characterised it as “very sensitive” in nature,
particular at this time, with negotiations on new agreements with the ground handling service providers still under way.
The CIAA had deferred the release of those draft agreements until after negotiations were completed next month – a decision Roulstone upheld.
The Ombudsman noted in her decision, “I find that disclosure would likely disrupt the ongoing negotiations and finalisation of the agreements, and this would likely harm the commercial interests of both the GHSPs [ground handling service providers] and the CIAA. Therefore, considering that the new GHSP agreements were still being negotiated at the time the request was made, and that process is not expected to be completed until August 2022, I find that the premature release of the draft agreements would be contrary to the public interest, and the deferral was correctly applied.”
However, the applicant had also applied for access to earlier authorisation letters dating back as far as 2008, and the Ombudsman pointed out that most of the letters have expired, as they relate to arrangements that are no longer in force.
“Given the non-current status of the vast majority of the letters under consideration, I find it highly unlikely that the disclosure of the historical letters would in any way prejudice the commercial interests of either of the parties, including the CIAA’s own interests,” Roulstone said in her decision.
She also questioned whether the information on those authorisation letters should already have been released, under the Procurement Act, which requires that certain information on awarded contracts be made public within 30 days or one year, depending on the value of the contract.
“That information consists, amongst other things, of ‘a brief description of the goods or
services being procured’ and ‘the name of the successful bidder’, which appear to be the
same data elements that have been requested by the applicant and redacted by the CIAA.
Whether or not the Procurement Act applies, it seems clear that the same elements which
the CIAA claims would seriously damage commercial interests, are expected to be published under procurement rules in the name of accountability and transparency,” she said.
The full text of the decision can be found here.
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