It’s been a shining example of open records legislation in the Caribbean, but with the current commissioner departing and the process slowing significantly in some recent cases, questions are emerging about the future of Cayman’s Freedom of Information regime.
The Cayman Islands now has “an open government,” Deputy Governor Franz Manderson declared last month. “FOI is alive and well.”
He adds, “While a few cases have not been handled as everyone would have liked, the majority of [open records requests] …. we never hear about them because there’s nothing to report.”
Just before the deputy governor made those statements, and likely unbeknown to him, Cabinet Secretary Sam Rose issued a decision on an open records request seeking the agendas, minutes and decisions of Cabinet minutes over the past year. Rose denied the request.
In his denial of the application, Rose stated, “This public authority does not have the capacity to respond to this request within any timescale prescribed under the FOI law. Each agenda or minute would likely have to be considered on a case-by-case basis to determine the appropriate exemptions, as well as the application of the public interest test, thus demonstrating an unreasonable diversion of resources.”
Rose went on to say that it is his responsibility to keep the minutes of Cabinet meetings and to relay conclusions reached during the meetings. He said ministries and portfolios are not provided with the Cabinet minutes, but with extracts from the minutes that contain decisions pertaining to their entity only.
The extract “is itself considered a confidential document,” he said.
Determining what is considered “confidential” is the purview of the information commissioner and, ultimately, the Cayman Islands Grand Court, if an appeal of an open records request gets that far in the process. So far, this has happened in only one case, an open records request from a U.K. citizen seeking certain reports relative to the ill-fated Operation Tempura police corruption investigation.
It’s not known whether the request for Cabinet records will get to that stage. However, according to statements made earlier this year by Information Commissioner Jennifer Dilbert, it seems that she has already decided the matter – at least in part.
Dilbert said in March that she was quite surprised at the lack of knowledge displayed regarding the territory’s Freedom of Information Law during a political candidates’ forum at the University College of the Cayman Islands.
“[The forum] showed an overall lack of understanding of the entire law,” Dilbert said at the time.
For instance, the participants in the Feb. 20 forum seemed to be of the view that everything done within Cabinet, the central governing body made up of elected ministers, the deputy governor, the attorney general and the Cabinet secretary, was supposed to be withheld from release under the FOI Law.
Absolutely not correct, Dilbert says.
“It’s not just because something goes to Cabinet that it’s secret,” she says “What was the most frustrating thing listening to the debate was that they were talking about records being secret and they’re not. Then they were talking about needing a law to change that and we already have a law.”
There are exemptions to the release of information held by Cabinet under the FOI Law. Section 19 of the law says a record is exempt from disclosure if it contains opinions, advice or recommendations prepared for the proceedings of Cabinet. A separate section of the FOI Law says a record is exempt if it contains a record of consultation or deliberations arising in the course of Cabinet proceedings.
However, the decisions made by Cabinet wouldn’t be automatically exempt. In fact, that would have to be decided on a case-by-case basis and in any event, Dilbert says, “You would expect that some of the decisions of Cabinet would be made public proactively.”
In addition, any factual reports that come before Cabinet would not necessarily be exempted from release under the FOI Law, she says.
Although Dilbert has been a strong advocate of the territory’s Freedom of Information Law, she is a short-timer in that position – due to leave by the end of this year.
The long-time civil servant and attorney was the first person appointed to the office prior to Cayman’s first Freedom of Information Law taking effect on Jan. 5, 2009. Her term has been marked by numerous successes, including the establishment of what was referred to at a Caribbean FOI conference in March as one of the strongest open records regimes in the region.
However, the latter part of Dilbert’s tenure has seen increasingly bitter budget battles as the Cayman Islands fought to sustain its finances during a worsening economic downturn.
“The commissioner has advised the newly formed Legislative Assembly that she is unable to continue to head a viable office without some relatively small increases in the budget for 2013/14,” the information commissioner’s recent newsletter stated.
The office is expected to receive funds for a senior policy analyst position in October, Dilbert says. In addition, the office has spent nearly $50,000 so far in pursuing a legal challenge against one of its rulings filed by former Cayman Islands Governor Duncan Taylor – the legal challenge concerning the release of the Operation Tempura records.
“The legal and professional fees budget of the [information commissioner’s office] has been completely stripped away during budget cuts and the commissioner has always stated that, should it become necessary, additional funding would have to be provided,” the commissioner’s newsletter noted. “These issues, although budget related, have the effect of negatively affecting the ability of the commissioner to effectively meet her obligations under the Law, and they therefore interfere with the independence of this office.”
In addition to the budget issues, Dilbert noted that the atmosphere in which her office has been operating has soured of late.
The [information commissioner’s office] is … finding it increasingly difficult to secure the cooperation of some public authorities and public officers, even at the highest levels, in the context of an appeal,” the newsletter read. “While an applicant is by law entitled to reasons why records are being withheld, such an explanation is sometimes not or insufficiently given, and it is not uncommon for full reasons to be delayed until a hearing has commenced.
“This is not acceptable, fair or legal, and the ICO will not tolerate it.”
So far, the information commissioner’s office has seen 118 appeals of information requests, of which 34 proceeded to the full hearing stage. Dilbert said many of the appeals occurred because of poor procedural handling of requests by the public authorities.
The deputy governor holds a different view.
He points to recent figures from Information Commissioner Dilbert’s office that indicated 2,901 open records requests had been made since 2009, when the Freedom of Information Law, 2007, took effect. Only 34 of those requests made it to a full hearing before the commissioner after the parties involved in the request couldn’t agree on what information should be released.
“That tells us that the vast, vast majority of requests get through the system,” Manderson says. “It’s very clear to me those [34 appeals] are the exceptions.”
Cayman’s Freedom of Information Law allows anyone in the world to request information from government entities here. Requests can be made anonymously and for free, though in some cases a small fee may be assessed if copies have to be made or additional research undertaken. The law sets out to a certain degree which type of information is public and which type is restricted from release.
Manderson says, as time has progressed and both the public and the government service have become more sophisticated in their use of open records law, requests have sometimes become more complex and have required assistance from the government’s legal department to process. Also, putting together information to respond to an open records request can take time, even if the government department fully intends to make the records public right away.
“Sometimes we are being more than helpful,” the deputy governor says. “People have to understand that if they want these things from government, it comes with a cost. We just can’t keep asking the same people to do more and more work. I don’t know of any department that has an FOI manager where that’s all they do.”
Ultimately, the goal is to have government departments proactively publish as much information as possible via the Internet, Manderson says.
“My vision and objective as deputy governor is for us to put much more information than we are doing on our website, make it public so that we don’t have these requests. We’ve gotten off to a good start with the premier, who is publishing his travel expenses. I will be doing the same thing. The more we do of that, the better.”
The practice Manderson describes is similar to a new way of making government-held information available to the public, proposed during U.S. President Barack Obama’s first administration. It’s called “open data.” The idea is for government agencies to proactively publish large amounts of information and records on websites for review, use and dissemination by anyone.
To a certain extent, the open data practice occurs under the Cayman Islands Freedom of Information Law where, each year, government agencies are required to release a “publication scheme.” Those lengthy lists of information are available in the government gazettes, as well as on the Information Commissioner’s website.
However, the open data regime would add a wrinkle. Rather than simply releasing raw records, in some cases, governments augment the information, adding charts and background to help readers understand.
“The opening of public data without providing … context is a double-edged sword that can enclose larger issues,” according to a statement from the Open Data for Development group, whose members presented at a regional FOI conference in Jamaica earlier this year. “What good is knowing pure numbers without knowing other details that give meaning to these figures?”
Maurice McNaughton of the University of the West Indies gave an example of how open data might be used to good effect. Rather than simply release a spreadsheet of the Jamaican government budget, he said, it might be more helpful to chart the percentages of the budget that are being spent in specific areas.
“You can clearly see our problem with debt,” McNaughton said, referring to a color chart that divided government spending.
Jamaican attorney Carole Excell, who led efforts to establish Cayman’s first Freedom of Information Law in 2007, told conference attendees that she is skeptical of McNaughton’s claims, and that open data regimes shouldn’t be considered a replacement for FOI or access to information laws.
Open data puts control entirely in government’s court, not only in what information to release, but also how it should be released – the precise thing FOI laws, which allow individuals to request specific data and records – seek to avoid, Excell said.
Also, the Carter Center’s Laura Neuman raised concerns about a practice known as “data dumping’ – where governments put reams of records in no discernable order somewhere in the public domain – generally prompting those reading it to simply give up. McNaughton agreed that open data is no replacement for FOI, but he believes the two might co-exist.