A Freedom of Information (FOI) applicant sought various records related to the Smith Barcadere (Smith Cove) Redevelopment Project, including an extract of Cabinet minutes related to the governing body’s decision on whether an exemption to the requirement to seek planning permission should be granted for the project.

The Cabinet Office denied the initial request under section 19 of the FOI Act, stating that the extract was a record of deliberations arising in the course of Cabinet proceedings. The Cabinet Office did not conduct an internal review of the request as required by the FOI Act, which allowed the applicant to appeal the matter directly to the Ombudsman. The contested record in this appeal hearing was the extract, an excerpt of the Cabinet minutes in relation to this project, not the full record of the meeting minutes.  

In reviewing the extract, the Ombudsman found it does not document any Cabinet discussion, does not show how Cabinet reached its decision, does not state any matters being considered in that decision and gives no details of Cabinet members’ discussions. These issues are important in determining whether the section 19 exemption of the FOI Act would apply. The Ombudsman found the wording of the section 19 exemption focuses on consultative or deliberative processes of Cabinet.   

Moreover, the Cabinet decision was already a matter of public record, as it had been reported in the local media. Additionally, the Cayman Islands Development and Planning Act requires any granted exemption from planning permission to be listed in the Cayman Islands Gazette, a public document. The Ombudsman found no evidence that gazettal of this decision occurred. However, if the project were exempted from planning requirements the Act would have required that decision to be made public.

“The FOI Act is in place to promote government openness and transparency and decisions made under this legislation should give due regard to that fact,” said Sandy Hermiston, Cayman Islands Ombudsman. “Public authorities have an opportunity to argue against disclosure based on an exemption or other reason under the Act.”

The Ombudsman ruled that the extract from the Cabinet minutes containing information on whether Cabinet granted planning exemptions in relation to the Smith Barcadere Redevelopment Project is not exempt under section 19(1)(a) of the FOI Act and that the Cabinet Office must disclose the extract related to this decision. A further finding is that the Cabinet Office violated provisions of section 34 of the FOI Act when it failed to conduct an internal review of its original decision to deny release of the extract record.  

The full text of the decision is available on our website at the link: https://ombudsman.ky/images/pdf/decisions/FOI_Decisions/Hearing_Decision_83.pdf

FOI applicants wishing to appeal a government decision of an FOI request may contact the Office of the Ombudsman via phone at 946-6283 or via email at [email protected]. Our website, www.ombudsman.ky also has much more information about the open records process in the Cayman Islands. -30-