Resolution of appeals

As a matter of policy, the ICO seeks to resolve appeals informally in the first instance, depending on the voluntary cooperation of both parties. This course of action has significant benefits and allows the ICO to apply its limited resources in an efficient and effective manner. While in the past we referred to a „mediation‟ process in trying to resolve appeals without going to a formal hearing, we are increasingly referring to it as an “informal resolution process” although this does not change the basic conditions and techniques that are being applied to the pre-hearing stages of an appeal.

During the period 1 January to 31 March 2012, twelve new appeal files were opened, and two closed. This represents the largest number of appeals received in one quarter to date.  The following is an update of the resolution of the two closed appeals.

001/12 Public Service Pensions Board

An applicant made a request for an appeal relating to two actuarial reports, dated 2008 and 2010, of the Public Service Pensions Board.  The public authority had deferred access to the 2008 report on the basis of section 11(2)(b) of the FOI Law until the report was presented to the Legislative Assembly.

In the ICO investigation it was confirmed that the 2010 report was non-existent, and that the 2011 report was still being compiled for presentation to the Legislative Assembly later in 2012.

The parties could not find common ground in the informal stage of the appeal, and the deferral of the 2008 report by the PSPB proceeded to a formal hearing before the Information Commissioner (see below)

004/12 Governor’s Office and H.M.C.I. Prison Service

An applicant appealed to the ICO after receiving seemingly contradictory responses from two different public authorities in separate FOI requests in relation to the same question. The applicant requested an appeal on the basis that they were concerned that this may have been in violation of section 55 of the FOI Law.   This section provides that it is an offence to alter and conceal a record with the intention of preventing its disclosure.

The ICO investigated the matter and concluded that no further action was required as the content of a record cannot, in general, constitute the basis of an appeal under the FOI Law.

On occasion the ICO receives requests from applicants to assist with various FOI-related issues. These are requests that do not fall within the category of an “appeal“ under the Law, and  can  range  from  helping  an  applicant  receive  a  response  from  a  public  authority  to informing an applicant of their rights under the law.  This quarter the ICO assisted many members of the public with FOI related issues.  As a result of the increasing numbers of such inquiries, the ICO has implemented a system of recording this activity and will be in a position to provide statistics in future reports

ICO hearings

Hearings Commenced

One Hearing (Hearing 20-00112) commenced during this reporting period.              It involves the appeal of a decision by the Public Service Pensions Board to defer access to the 2008 Actuarial Valuation Report for the Public Sector Pension Plans.

Hearing Decisions Issued

No Hearing Decisions were issued during the period 1 January – 31 March.  However, the following Hearings required significant post-publication involvement on the part of the ICO:

Decision: Hearing 16 – 00811 National Pensions Office

25 October 2011

An Applicant was refused access by the National Pensions Office (NPO) to audited accounts and records of correspondence relating to Multiple and Single Employer Pension Plans from July 2006 to June 2010. The Information Commissioner did not make a ruling on the release of the responsive records, and required the Chief Officer of the National Pensions Office to re-examine the request and the responsive records and to take such steps as may be necessary to bring the National Pensions Office into compliance with its obligations under the Law.

During the period, the ICO continued to work with the applicant and the NPO to facilitate the disclosure of the records to the applicant.  The applicant has received some records but is not satisfied and has appealed to the ICO for a ruling on the release of further records.

Decision: Hearing 17 – 01711 Royal Cayman Islands Police Service

10 November 2011

An Applicant was refused access by the Royal Cayman Islands Police Service (RCIPS) to records relating to a number of complaints and investigations pertaining to the Applicant, as well as personnel records of the Applicant. The Information Commissioner overturned the decision of the RCIPS to partially withhold the responsive records and required the RCIPS to disclose to the Applicant all the responsive records that have been provided to the Commissioner.

As the responsive records were not released by the deadline set out in the Law, and no application  for  Judicial  Review  had  been  made,  the  Information  Commissioner,  on  9

January, advised the Chief Justice of the failure of the RCIPS to comply with her decision pursuant to Part VII of the FOI Law. The records were subsequently released, and the Chief Justice, on 7 February advised that as there had been compliance, albeit belated, so that no contempt proceedings would be pursued.

The  ICO  compared  the  records  received  by  the  applicant  to  the  responsive  records provided to the ICO during the Hearing, and determined that for the most part the applicant had eventually received copies of the responsive records.

Decision: Hearing 19 – 01011 Port Authority of the Cayman Islands

13 December 2011

An Applicant was refused access by the Port Authority to “…a copy of all notes and or minutes of meetings between the Government and the Port Authority (as well as any other governmental body) that touches and or concerns the [GLF] project … from December 2010 to date.” The Information Commissioner overturned the decision of the Port Authority to withhold the responsive records and required that it disclose to the Applicant all the responsive records that have been provided to the Commissioner in  the  appeal.  The  deadline  for  the  release  of  the  responsive  records  was  27 December 2011.

In an unusual turn of events, the original Applicant advised the Commissioner that they no longer required the records.  However, given that another applicant had requested the same responsive records, and that the records had been found not to be exempt under the FOI Law, the Commissioner required the Port Authority to comply with the Decision and provide the new applicant with the records.  The Port Authority refused to do this and on 7 February the Commissioner advised the Chief Justice of this failure.  The Port Authority objected and questioned the validity of the

Commissioner applying the original Decision to a new applicant.

The Commissioner subsequently decided that for the courts to determine whether the records should be released by the enforcement of her existing Decision would most likely involve a long legal battle.  A better way forward would be for the new applicant to go through the normal process as set out in the FOI Law, and make a new request. The Commissioner therefore withdrew her letter to the Chief Justice

The Port Authority published the responsive records on 25 February, 2012.

Release of Responsive Records

Decision: Hearing 19 – 01011 Port Authority of the Cayman Islands 13 December 2011.  Responsive records published on 25 February 2012.

Judicial Review

No Judicial Review of any of the Commissioner‟s Decisions has been sought to date.

Compliance Reports

Between 1 October and 31 December 2011, 193 Freedom  of Information requests were logged by public authorities. This is a 69% increase in requests over the previous period. Of the 193 requests received, 144 were closed during the same period.  Requests received this period were received by 58 out of the 91 public authorities. The remaining 33 authorities did not log any FOI requests

The ICO regretfully reports the non-compliance of 25 public authorities who failed to submit their reports before the deadline, even after receiving a further reminder concerning the matter. Public authorities who continue to be non-compliant will be listed in future Quarterly Reports, and in the Information Commissioner‟s Annual Report to the Legislative Assembly.

As customary, compliance reports, which provide details of requests made under the FOI Law from January through March 2012 will be recorded, analysed and included in next quarter’s report.  As above, this Report gives data for the quarter 1 October – 31 December 2011.

For the whole of this Report go to www.INFOCOMM.ky