Balancing the right to know

Cayman’s first open records law is going strong more than two years after its passage by legislators. Now, Information Commissioner Jennifer Dilbert says its time to clarify things a bit.  

Readers who are familiar with the struggles to establish Cayman’s first Freedom of Information Law since its passage in 2007 might be surprised to learn that Jennifer Dilbert does not consider herself to be a “champion” for open records.  

She would rather be known as an advocate of the law itself, regardless of whether her office makes a decision to release public records or withhold them.  

“There is more of a furore made if I order a public authority to release something than if I don’t,” Dilbert says. “But I think that the general public gets the impression that we are against the public authorities and we are a champion for getting records out. That’s actually not correct. We are a champion for the law; that’s kind of hard to get through.”  

Dilbert and her small staff at the Information Commissioners office have made several pages worth of recommended changes to Cayman’s open records law 

, which are now under review by a legislative subcommittee.  

Some of those changes will actually make it more difficult to obtain information under the FOI Law.  

 

Surprised?  

Issues are fairly technical regarding how information can be released. Typically, a member of the public makes an open records request to the information manager of a public authority. It is the manager’s decision to either release the document or withhold it. If the record is withheld and the record applicant wants to make an appeal, it goes to the chief officer of the entity. If the matter is further appealed it then goes to the information commissioner’s office for either mediation or a hearing.  

Once the information commissioner makes a decision either to release, partially release or withhold the record, the decision can then be appealed to the Grand Court – although no open records case in the Cayman Islands has gone to that step since the FOI Law came into effect on 5 January, 2009.  

At the time of this writing, the information commissioner’s office had decided 14 appeal cases; six in favour of withholding the record, five in favour of releasing it and three in favour of partial release of the record requested.  

 

Law changes  

A number of changes proposed by the information commissioner to the FOI subcommittee include clarifying areas of the law that are too broad or undefined.  

One example has to do with the all-important public interest test, which can be the ultimate factor in deciding whether a government document will be released or withheld.  

Right now, the FOI Law does not require a preponderance of the evidence in favour of public interest disclosure before releasing a public record; the information commissioner in deciding an appeal need only find one reason the record is in the public interest – no matter how many factors may be against its disclosure.  

Dilbert has chosen to interpret the law to insert what she believes is the proper weighing of public interest in disclosure versus non-disclosure; but she’s not required to do that. 

“The law just says ‘here’s the definition, if any of these apply it can be in the public interest to release’. That is too low a standard in a way,” she says.  

Another glitch in the law actually serves to give the Cayman Islands’ attorney general fewer rights than every other lawyer in the Islands.  

In almost any case, a public record is exempt from disclosure if it is given under the purview of legal advice privilege – similar to what’s known as ‘attorney-client privilege’ in the United States.  

“Advice given by the attorney general is covered under the FOI law, but so is anything that is legally privileged,” Dilbert says. “But the advice of the attorney general was subject to a public interest test and legal advice privilege wasn’t.”  

Dilbert’s office has recommended changing that and putting the attorney general on the same level as the rest of the Islands’ attorneys. Such a decision would serve to restrict access to public records a bit further.  

There is still a great deal of confusion over exemptions that apply to the deliberation of government bodies and boards. There is the impression, for instance, that anything done by the Cayman Islands Cabinet is “off limits” for FOI. Not true, says Dilbert.  

“While something might be a record of proceedings of Cabinet, it’s not a record of consultations of deliberations of Cabinet,” Dilbert says, adding that it is the deliberations of Cabinet or any elected or appointed board that the FOI Law seeks to protect from release.  

“People on these boards have to feel comfortable to speak out and such,” she says. “But the part of the record that shows what decisions were made, that’s what is public. The part of the record that says ‘Mr. So-and-so said so….that is the part that is exempt.” 

 

Board matters 

Deputy Information Commissioner Jan Liebaers says the office has been at pains to meet with locally appointed board members to describe their responsibilities under the FOI Law. Some board members have taken it better than others, he says.  

“The first message we have that’s kind of a surprise to them is that FOI applies to their records,” Liebaers says. “That’s shocking to some people.”  

But explanations that deliberative discussions will remain secret and that ‘FOI’ doesn’t always mean that boards or committees have to release records does provide some comfort, he says.  

“There is still a certain perception amongst board members where they think that FOI means everything has to be open. If there’s a reason under the law why it should be protected, we will respect that.”  

To some extent, Liebaers says the information commissioner’s office is still struggling with a “corporate culture” that is adverse to open records, particularly at the more senior levels of the government service. 

“There is still an issue with buy-in, but we’ve come a very long way,” Liebaers says.  

However, Dilbert says her experience is that most civil service workers at the information managers level “get it” when it comes to open records, or at least have resigned themselves to the inevitability of the process.  

“I think the public expectation of being able to get information is changing,” she says. “The public now expects to get information, I think that’s great.”  

 

Review is due 

A legally mandated review of Cayman’s Freedom of Information Law that was supposed to happen within 18 months of the open records law coming into force has apparently not gotten out of the government subcommittee yet.  

Dilbert says her office had largely been left in the dark on the review of the law.  

“Despite the fact that the governor said we would take a leading role [in the FOI Law review]….we haven’t,” Dilbert says.  

“We have tried to play as much of a role in that as we could, which means we haven’t been given much of role,” agrees Liebaers. A Legislative Assembly subcommittee charged with the review of Cayman’s Freedom of Information Law sought input from the public to assist that review in April of this year.  

According to a notice sent out by the government press office that month: “The subcommittee is currently conducting its review and in pursuance thereto is now inviting input from the public to assist the subcommittee with this review.” 

Following the submission deadline of 8 May, the subcommittee, chaired by Cayman Islands Attorney General Sam Bulgin, has made no further public pronouncements about its activities.  

Dilbert’s office submitted an extensive report and position paper to the FOI subcommittee earlier this year that set out changes in the law it advised the subcommittee to accept. There was also a “position paper” the office released on FOI matters.  

To date, Dilbert says her office hasn’t been invited before the subcommittee to review the issues.  

“If I were on a committee and I had been given this [report], I would really want the people who created it to come and talk me through it,” she says. “Maybe that will happen, it just hasn’t happened yet.” 

 

FOI position 

In the April report, Dilbert urged government to maintain anonymity of open records requestors and to keep fees charged for the release of such information minimal. 

“The FOI Law is already being used by a large number of people and it is important to understand the issues that might be under review,” the report noted.  

Thus far, any meetings of the FOI subcommittee and of a related select committee of the whole Legislative Assembly created to review the FOI Law have not been open to members of the public to attend. Meeting dates for the subcommittee have also not been made public. An open records request for minutes of the subcommittee’s meetings was deferred.  

Dilbert’s position paper essentially provides some talking points in the public debate over the Freedom of Information Law.  

“The commissioner does not support any amendments to the FOI Law, which would restrict or eliminate requestor anonymity or change the current fee structure applicable to FOI requests,” the position paper stated.  

The removal of anonymity provisions from FOI applications would change the focus of open records applications, Dilbert fears. She says, right now, information managers – who process open records requests – are required to only focus on the records themselves. If no exclusion or exemption applies to those records, the right of access to information must prevail.  

“The identity of the applicant cannot, in any way, be pertinent to this determination,” Dilbert writes in her position paper.  

Moreover, revealing the names of information applicants could have a “chilling effect” on their ability to seek open records, reducing their right to use FOI as set out under Cayman’s Constitution, she argues.  

“It is especially important to ensure that applicants do not feel intimidated into refraining from applying for access to government records…and face possible public exposure and/or retribution,” Dilbert noted.  

The United Kingdom’s FOI Law does not accept requests from individuals who are obviously not using their real names. However, in practice, UK public authorities do not seek to prove an applicants’ identity and in any case the applicant’s name is considered irrelevant to the request for information.  

Dilbert says Cayman’s small size – approximately 55,000 residents – makes the use of people’s names more sensitive compared to the UK, which has a population of approximately 60 million.  

 

Fees  

Cayman’s FOI Law already allows for fees to be charged for information requests, but it requires those fees to be “reasonable” – not to exceed the actual cost of preparing and reproducing the record. The fees can be set in regulations to the law by the Cayman Islands Cabinet.  

Dilbert admits that there is a perception among some members of the public that FOI “costs too much”. However, she says this generally results from three underlying factors: the relative ineffectiveness of a department information manager, the state of public authority record-keeping, and the small amount of information that is proactively published by the government.  

“The commissioner believes that it would be unfair to make applicants pay for government’s own inefficiencies,” Dilbert’s position paper read. “These three causes of wastefulness should be fully investigated and corrected first.”  

Excessive FOI fees could lead to the ultimate elimination of the right of access to government records, particularly by the underprivileged of society, Dilbert states.  

“The negative consequences of charging a new fee would outweigh the advantages of the small amount of revenue gained,” she says. 

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