A port is not always a safe place in a storm and the Port Authority Cayman Islands’ (PACI) reply to the Information Commissioner’s Office (ICO) criticism of the Authority has not done anything to make it a place of safe refuge.

Back in January 2012 CNS made a Freedom of Information Request regarding the GLF cruise berthing proposal. This was after a previous request by another party was dealt with by the ICO but was then dropped by the applicant. From that point on CNS says the obstruction and difficulties began.

More and more obstacles CNS story says were put in the way by the PACI to not only them but to the ICO whom CNS had turned to for help.

In the ICO Decision Hearing 25 -00812, Jennifer Dilbert the Information Commissioner says:

“The Port Authority of the Cayman Islands withheld various records pertaining to the termination by Government of an agreement to construct a new cruise berth in the George Town port.

“The Information Commissioner upheld the decision of the Port Authority to withhold some records, ordered the disclosure of some, and found some records to be duplicates or insignificant records.”

The damning part against the PACI by the ICO is this:

(From ICO Decision – for Full ICO Hearing 25-00812 Decision Port Authority of the Cayman Islands Dated 25 October 2012 go to

http://issuu.com/inewscayman/docs/ico_decision_25-00812_port_authority_final_2012-10?mode=window&viewMode=singlePage&backgroundColor=%23222222

The procedural issues that arose during this appeal are unprecedented, both in number and complexity. The Port Authority repeatedly failed to meet deadlines and cooperate fully with the ICO in dealing with the appeal, and in my opinion showed a total disregard for the policies and procedures of the ICO, and the FOI Law. This resulted in delays and much additional work on the part of the ICO to bring the appeal to this point. These procedural matters will be addressed separately by means of an investigation under section 44, as they raise some very important issues with respect to compliance with the FOI Law. However, amongst other issues I note the following apparent shortfalls:

– PACI stated repeatedly that another public authority held significant responsive records, but the request was not transferred as required in section 8;

– After not responding to the second part of the request within the statutory period of 30 calendar days, PACI delayed its response for an additional month after the appeal had already commenced;

– After indicating the existence of unspecificied “remaining records” in its letter of 3 April 2012, PACI delayed for approximately an additional month, any explanation of what these records were;

– After providing the Applicant with a very limited disclosure consisting of two letters and a redacted set of Board minutes on 3 April, PACI seemingly sought to consider the matter closed, all the while indicating the existence of further “remaining records”;

– The apparent confusion between “disclosure” and “providing records to the ICO” on the part of PACI – which caused further delays;

– PACI’s delay, for more than a month, in responding to the opinion letter, and the disappointing final response, in which PACI indicated that it would not disclose information “voluntarily”, which in my opinion goes against the intent of the FOI Law which precisely grants a general right to access government records and places a requirement to publish as much as possible proactively.

I wish to address one point in particular here, namely the matter of the provision of the responsive records to the ICO. As noted above, PACI seems to have consistently confused the disclosure of records to an applicant, on the one hand, with the provision of copies of records to the ICO for the purposes of determining an appeal under the FOI Law, on the other hand.

In this regard, I utterly reject the argument of PACI that “PACI is unable to disclose any privileged documents in the absence of compulsion as to do so would result in waiver of privilege over these records”.

It is self-evident that I cannot meaningfully decide an appeal under the FOI Law without having access to the responsive records in each case. As repeatedly clarified to PACI, this is why section 45(1) provides that in coming to a decision on an appeal the Information Commissioner shall have the power to “call for and inspect an exempt record”. The same section also requires that such a record be inspected only by relevant members of staff of the Commissioner.

In addition, section 45(2) states that the Commissioner may “examine any record to which this Law applies, and no such record may be withheld from the commissioner on any grounds unless the Governor, under his hand, certifies that the examination of such record would not be in the public interest”.

It is clear from these provisions that a formal order is not necessary, and indeed it has not proven necessary in the past, as the Commissioner and her staff have consistently obtained access to exempt records in past appeals and hearings, including where legal professional privilege was being claimed.

Furthermore, any order made by the Information Commissioner is subject to judicial review, and the public or private body has 45 days in which to comply, or seek judicial review. Should the Information Commissioner be forced to issue a formal order for any exempt record in the course of each appeal, the appeals process as anticipated by the Law would be fundamentally undermined and would not be able to take place within a reasonable time frame. Remembering that the FOI process is usually time sensitive, and that deadlines for responses to applicants and the issuing of decisions are clearly set out in the Law, it cannot be the intention of the Law that an order be required every time the Commissioner has to have sight of a responsive record whether legally privileged or otherwise exempt.

Following a month of negotiation, unacceptable delays, and non-cooperative and obstreperous responses on the part of PACI, ICO staff was finally able to inspect the responsive records at the offices of PACI’s lawyers. The ICO was challenged at each step of the way, and while to expedite matters the ICO agreed to inspect records at the offices of the lawyers, it placed significant and unnecessary logistical burdens on the staff. It was doubly frustrating, and further testifies to the obstructionist approach by PACI, when the resulting informal opinion letter was apparently not seriously considered after a further delay of over a month.

PACI also argued that “grant of access to privileged or potentially privileged records is not protected by s. 54(3) of the FOI Law”. It is clear that 54(3) applies to “the grant of access to a record”, which in the context of the FOI Law must be taken to mean grant of access to an applicant, and not the provision of the record to the Information Commissioner in the course of an appeal.

END

The PACI reply is as follows:

The ICO’s decision of 25 October notes that, in February and April 2012, the Port Authority had disclosed various documents responsive to the request made under the FOI Law.  The ICO’s decision deals with other documents in respect of which disclosure was disputed, because the Port Authority believes those documents are subject to legal privilege and other legal exemptions from production.

Having considered the issues, the ICO’s decision upholds the Port Authority’s view that the majority of these disputed documents were indeed not liable to be disclosed.  The ICO has determined that other documents which were contained within the files that were reviewed were merely duplicate documents, or were insignificant.  The remaining documents, however, have been ordered to be disclosed, or partly disclosed.  The Port Authority is considering the implications of the ICO’s decision with respect to these documents.

The ICO’s decision notes that the procedural issues which arose in relation to the appeal were “unprecedented, both in number and complexity”, and involved detailed review by the ICO’s office of more than 244 documents, many of which contained attachments.  The ICO also accepted that there was a joint legal position between the Port Authority and the Ministry of Finance with respect to the dispute with GLF, and that four different categories of privilege were relevant to the question of whether a disclosure could be made.  The ICO’s decision confirms that there was a “copious amount of correspondence” undertaken to ensure that all potentially relevant documents were identified, and that following this, a mediation took place in which all records were reviewed.

Against this background, and in light of the importance of the legal principles surrounding privileged documents, the Port Authority is surprised and disappointed by the tone of the ICO’s decision.  The Port Authority does not believe that the critical comments are in any way justified, nor are they relevant to the legal issues that were the subject of the ICO’s ruling.  For the avoidance of doubt, it is denied that the Port Authority has breached either the spirit or the letter of the FOI Law, and any suggestions to that effect are strongly rejected.  However, as the matter is still within the period for any appeal, the Port Authority does not believe that it is appropriate at this stage to debate the issues in the media.

See today’s Editorial