Jennifer Dilbert, the Cayman Islands Information Commissioner, and her team joined 33 other offices around the world in a survey recently undertaken by the Centre for Freedom of Information based in the UK.

Dilbert found that she is not alone in believing her department is under resourced.

See the survey below:

International Survey of Information Commissioners and Ombudsmen

Report on Results

Introduction

This benchmark survey of Information Commissioners was conducted on-line by the Centre for Freedom of Information, with responses received between 6 February and 24 March 2013. Invitations were sent to a wide range of Information Commissioners, Ombudsmen,

Commissions or Councils, and comparable official bodies, which have been established to respond to appeals or complaints submitted following requests made under a law giving a right to information. (The term Commissioner will be used generically in this survey report to encompass all such bodies.)

Responses were received from 34 Commissioners as follows:

Australia:

•          Australia (Commonwealth);

•          New South Wales,

•          South Australia,

•          Queensland,

•          Western Australia,

Canada:

•          Canada (Federal),

•          British Columbia,

•          Newfoundland and Labrador,

•          Northwest Territories,

•          Ontario,

•          Prince Edward Island,

•          Quebec,

•          New Brunswick (partially)

Caribbean:

•          Cayman Islands.

Europe :

•          Denmark,

•          Estonia,

•          Germany,

•          Ireland,

•          Macedonia,

•         Scotland,

•          Serbia,

•          Slovenia,

•          United Kingdom

India:

•          Nagaland

Mexico:

•          Mexico (IFAI),

•          Aguascalientes,

•          Distrito Federal,

•          Estado de Mexico

•          Guadalajara,

•          Hidalgo*,

•          Oaxaca,

•          Tabasco,

•          Veracruz*

(*completed by PDF not online)

USA

•          Office of Government Information Services

Key Findings

Volume of appeals and resources to respond

Overall 76% of Commissioners expect the number of appeals which they will receive this year to ‘increase substantially ‘(27%) or ‘slightly’ (49%). None expect the number to decline.

In terms of their capacity to deal with current and projected workloads, 77% believe that their financial and staff resources, are ‘insufficient ‘(58% ) or ‘not at all sufficient’ (19%).

Appeals Received

The actual number of appeals received and resources to deal with these varies greatly (Table 1)– ranging from the Northwest Territories in Canada which in 2011 received the fewest appeals (15) and has zero staff, to the Federal Commission in Mexico which had the highest volume of appeals (6185) and largest staff complement (430).

See Table 1 Appeals Received 2011

*Not included in the on-line survey results

Time taken to deal with Appeals

The reported time taken to deal with appeals also varies significantly (See Table 2). The shortest reported average time taken to dispose of cases is 3 days; the longest time is 380 days.

However considerable work would need to be done to establish an entirely accurate like –for – like comparison. Some Commissioners start the clock on the time taken from the date of receipt, others from the date that the appeal is deemed to be valid. Some measure in calendar days, whilst others use working days, and others still report on the basis of working weeks or calendar months. Some reported the average time taken; others base it on the median time. Nevertheless the time range is considerable.

Not all of the Commissioners work within statutes on access to information which indicate a period within which a decision should be taken- in a third of responses Commissioners say they are not obliged to come to a decision within any limit of time. Where the law does stipulate a timescale the range is also reported to be wide. In Tabasco it is said to be ‘3 days to agree and 3 days to notify’. The longest period allowed was said to be 180 days, in the Northwest Territories/ Nunavut in Canada. In many instances laws may specify 30 or 90 days but permit Commissioners to extend the time taken, either for a stated further period or at their discretion

Conclusion: On the basis of the figures reported it appears that in many cases Commissioners are not able to make their decisions within the time allowed in law or within what may be regarded as a reasonable period, with several taking over one year to do so. The projections of increasing numbers of appeals with insufficient resources to deal with them may simply compound the incidence of delayed decisions and backlogs.

Investigation Processes

The survey looked at the investigative processes used by Commissioners and in particular the extent to which they used statutory powers of investigation and enforcement.

Before coming to a decision on an appeal Commissioners regularly require the authority/agency to provide the information which has been withheld from the requester, with over half (51.5%) saying that they ‘always’ do so with a further 36.4% indicating that they ‘usually’ do so.

However, apart from obliging authorities to provide the information in dispute, where Commissioners have statutory powers of investigation or enforcement they tend to use these sparingly.  Less than a third of respondents reported that they ‘sometimes’ or ‘often’ compelled individuals to give evidence or to make an oral statement; only one-fifth ‘sometimes’ or ‘often’ went to Court to enforce compliance with their decisions. Nevertheless there are instances of Commissioners pursuing investigations through the search of premises, and by seizing equipment or documents. Where failings are found some are imposing penalties on authorities or recommending disciplinary action against staff.

Sharing of Draft Decisions

The practice of Commissioners and Ombudsmen is split on whether to share a draft decision or preliminary conclusion with the authority and/or requester, prior to issuing a final determination. A majority (57.6%) do not do so, but nearly 40% do share with both parties and a further 3% make a draft available to the authority only.

Most of the Commissioners (76%) have the power to issue decisions which have to be complied with, although 24% can make recommendations only. It is notable therefore that sharing drafts is markedly higher by those Commissioners whose decision is a recommendation only – in those circumstances over 70% of the Commissioners share a draft decision with both the requester and the authority. (see Chart 1 below).  This may indicate a difference in professional culture between those Commissioners who are founded upon an Ombudsman approach which places an emphasis on dispute resolution and those later appointments where the quasi-judicial enforcement role is more pronounced

Publication of Decisions

The overwhelming majority (94%) of respondents usually publish their decisions either because they are required to do so by law or because they choose to do so as a matter of practice. Only 1 Commissioner reported that they were forbidden to publish their decisions and 1 other was allowed to publish decisions but usually chose not to do so.

However publication does not necessarily mean that an entire decision, naming both parties to the case, is put into the public domain. Whilst 90% of Commissioners publish the name of the agency involved, only 30% name the requester. Furthermore many decisions are published in an edited form (37%) or are provided only as summaries (10%). The main reasons given for editing the text is to remove personal information or to avoid disclosure of the actual information which is in dispute. ( One Commissioner noted that “ Occasionally we include a confidential annex to a decision notice for the public authority only, where our full reasons can only be articulated by referring to the withheld information or other information which is itself exempt.”)  Decisions which do not set a precedent or otherwise are not deemed to be significant are often published in a summary or note form.

Appointment of Commissioners

Last year (September 2012) a controversial decision of the Supreme Court of India required that all Chief Information Commissioners must be retired judges, and that all decisions should be taken by a bench of two Commissioners at least one of which should be a ‘judicial member’ being either a retired judge or “A law officer or a lawyer … provided he is a person who has practiced law at least for a period of twenty years”. The Court advised the Government to change the selection criteria in the Right to Information Act accordingly.

This prompted questions to be asked in the survey regarding the terms of appointment of Commissioners etc.

The responses show that 45% of statutes in the jurisdictions concerned do not make any requirement at all regarding the qualifications or experience of those appointed as Commissioner.

Where the statute makes a stipulation then this may indeed include requiring those appointed to be a lawyer or to have a legal degree ( e.g Serbia, Prince Edward Island, Queensland). (None of the responses indicated however that the appointee had to be a retired judge.

Elsewhere the qualifying criteria varies – requiring citizenship (e.g Slovenia) or having attained a minimum age such as 30 or 35 (e.g Tabasco). In the Estado de Mexico a person cannot be appointed as Commissioner if they have been a leader of a political party or a ‘minister of worship’ within the previous 5 years  or have ever been convicted of  a crime punishable by imprisonment.

Often the provisions in law are broadly expressed, giving only general guidance (in the manner to which the Supreme Court of India objected), such as requiring a university degree, senior management experience and/or relevant knowledge (e.g Cayman Islands, Estonia)

As it is, just over half (51.5%) of Commissioners who responded were said to be qualified lawyers or judges (the distinction was not made in the response); 48.5% are not legally qualified professionals.

Term of Appointment

Typically Commissioners are appointed on a fixed term contract of between 5-7 years, although a few serve for much longer periods (e.g. Denmark – 10 years ) or shorter (e.g Newfoundland and Labrador- 2 years). Often these contracts are eligible to be renewed for at least 1 further term. However in several instances the appointments are for one term only, such as in Nagaland, India and several Mexican states. In Scotland and the United

Kingdom, the law has recently been changed to limit Commissioners to one term only.

About the Centre for Freedom of Information

The Centre for Freedom of Information is based in the University of Dundee, Scotland and is focussed on the implementation, interpretation and enforcement of laws which provide rights to information.

This survey was conducted as part of a project to carry out research and activities related to the work of Information Commissioners and equivalent appellate bodies worldwide. This work is assisted by funding from the Open Society Foundations, with the aim of establishing an International Information Commissioners Exchange Network.

The Centre’s  International Advisory Board  consists of current and former Information Commissioners from Australia, Canada, India, Mexico and Slovenia.

The Executive Director of the Centre, Kevin Dunion, is the former Scottish Information Commissioner

For further information contact: Professor Kevin Dunion

Executive Director

Centre for Freedom of Information

School of Law Scrymgeour Building University of Dundee

Nethergate, Dundee DD1 4HN

e-m: [email protected]

Mobile: ++44(0)7809 144843 www.centrefoi.org.uk