“No further progress has been reported on the statutory review of the FOI [Freedom of Information] Law, which was commenced by the Legislative Assembly in 2010,” says Jennifer Dilbert, the Cayman Islands Information Commissioner, in the 2012-2013 Second Quarter Report, 1Oct – 31 Dec 2012 from the Information Commissioner’s Office (ICO).

She says:

“Due to limited resources and an increase in the number and complexity of appeals, the ICO has not been able to make further progress with organizational and legislative changes that would enable it to meet accepted international levels of independence. The practical reasons for this are budgetary, as the ICO is tied to the Government budget process. The ICO is subject to the provisions of the Public Management and Finance Law for the administration of its budget, and to some degree to the Public Service Management Law for its Human Resources management.

“Nonetheless, the Information Commissioner has not experienced any political interference or problems with lack of independence with respect to her obligations to hear and rule on appeals.

The Information Commissioner held discussions with the Deputy Governor and the Chief Officer of the Portfolio of the Civil Service with a view to developing a process where civil servants could be placed in the ICO for set period of time. It is felt that this would be good use of Government resources which may be underemployed in some public authorities, it would provide much needed help to the ICO, as well as good experience in FOI matters for the officer to take back to their substantive post at the end of the placement. It is hoped that the first such placement could commence in January.

“Public consultation on the draft Data Protection Bill commenced on 3 September, with a closing date for feedback of 2 November 2012, extended by two weeks to facilitate additional responses.

The ICO continues to be concerned with the length of time that some appeals are taking to be investigated, resolved, and/or heard by the Commissioner. These delays are caused by a number of factors including public authorities’ failure to properly identify and examine responsive records, involvement of legal counsel late in the appeals process, and non- or delayed responsiveness to both applicants and the ICO resulting in non-adherence to agreed timetables for investigation and hearing. The ICO is revising its internal policies and procedures for appeals to address some of these issues.

Because of the growing number of complaints and appeals relating to civil service personnel records, the Information Commissioner met with the Chairman of the Civil Service Appeals Commission to discuss overlapping issues with respect to the handling of records. In several instances, present and past members of the civil service have experienced great difficulty in gaining access to their own personnel records. The Commissioner and the Chairman subsequently met jointly with the Deputy Governor to advise him of the problems. As a result, the Deputy Governor has undertaken to issue a directive to Chief Officers on the provision of personnel records to civil servants.

As a matter of policy, the ICO seeks to resolve appeals informally at the pre-hearing investigation stage. Most appeals are successfully resolved without involving a formal hearing before the Information Commissioner.

During the period 1 October to 31 December 2012, 7 new appeals were opened, 6 were closed, and 2 moved to a formal hearing before the Commissioner. As at end December there were 9 pre-hearing investigations in progress.

The ICO continues to receive a growing number of requests from members of the public to assist with various FOI-related issues. Over the quarter 31 such requests were received, many of which involved several meetings or communications. These requests do not fall within the category of an “appeal“ under the Law, and can range from helping an applicant to formulate a freedom of information request to informing an applicant of their rights under the Law. Given the amount of time spent by staff on these requests, the ICO will consider whether the budget output measures should be adapted to reflect this activity.

Three Hearings commenced during this reporting period:

• Hearing 22 – Substantive Hearing of 22 – 00712 Cabinet Office

• Hearing 27 – 00912 Public Service Pensions Board

• Hearing 28 – 02112 Governor’s Office

Hearing Decisions Issued

• Substantive Decision: Hearing 22 – 00712, Cabinet Office

7 December 2012

An Applicant was refused access by the Cabinet Office to Cabinet minutes relating to Cayman Islands Estates Ltd. and certain named blocks and parcels of land, while supporting papers were claimed not to be “held” under the Law. The Preliminary Hearing Decision of 24 August 2012 concluded that the Cabinet papers were indeed “held” by the Cabinet Office as they were in their possession, control or custody, as required by the Law. In the Substantive Hearing Decision, the Acting Information Commissioner overturned the decision of the Cabinet Office to partially redact the responsive records under section 23(1), and required that the records, both minutes and papers, be disclosed in full.

• Decision: Hearing 23 – 00512, National Pensions Office

5 October 2012

An Applicant was refused full access by the National Pensions Office to audited accounts and records of correspondence relating to Multiple and Single Employer Pension Plans from July 2006 to June 2010. Following the Information Commissioner’s Decision 16 – 00811, a significant number of records was disclosed, but some information remained redacted, and the Applicant appealed to the Information Commissioner. The Information Commissioner upheld the decision of the National Pensions Office to redact personal and commercially sensitive information from the records provided to the Applicant, except for two names which did not constitute personal information and were ordered disclosed.

• Decision: Hearing 24 – 00612, The Governor’s Office

22 November 2012

An Applicant was refused access to documents relating to a complaint to H.E. the Governor on Operation Tempura and his response to the complaint. The Information Commissioner overturned the decision of the Governor’s Office that the records fall within the ambit of section 54(1) and as such the FOI Law did not authorize the disclosure of the records. She overturned the decision of the Governor’s Office that the responsive records were exempt from disclosure under sections 17(b)(i), 23(1) and/or 20(1)(d) and ordered that the records be disclosed.

• Decision: Hearing 25 – 00812, Port Authority of the Cayman Islands

25 October 2012

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 and the ensuing negotiations. The Information Commissioner upheld the decision of the Port Authority to withhold some records as they were covered by legal professional privilege, but ordered the disclosure of a number of other records, while finding some records to be duplicate or insignificant.

• Decision: Hearing 26 – 00312, Office of the Auditor General

26 November 2012

The Information Commissioner upheld the decision of the Office of the Auditor General to redact certain information relating to the Auditor General’s report on Operation Tempura under sections 20(1)(b), (c) and (d). The Commissioner disagreed with the application of section 17(a) (legal professional privilege) to one of the responsive records, but agreed that section 20(1)(b) and (d) applied to it instead.

Between 1 July and 30 September 2012, 113 Freedom of Information requests were logged by public authorities. This represents an 18% increase in requests from the previous period. Of the 113 requests received, 86 were closed during the same period. A total of 35 out of 92 public authorities received requests in this period. The other 57 authorities did not log any FOI requests.

Investigation 12 – 01012, General Registry

This investigation was undertaken in response to the destruction of responsive records by the General Registry, which took place in 2006 at a time when neither the FOI Law, nor the National Archive and Public Records law 2007 had yet come into effect. The investigation found that the General Registry has not yet developed a disposal schedule for its operational records as required under section 8 of the National Archive and Public Records Law, and the Deputy Information Commissioner recommended that the General Registry engage with the National Archive to develop a records retention and disposal schedule for their operational records.

Investigation 5 – Website Re-evaluation

Due to the limited resources available to the ICO, and the increased number and complexity of appeals, this investigation has been put on hold for the time being.

Public authorities are reminded to use their websites to publish their records and information proactively, and provide the information about applicants’ rights and related procedures under the FOI Law.

Investigation 5 – Website Re-evaluation

Due to the limited resources available to the ICO, and the increased number and complexity of appeals, this investigation has been put on hold for the time being.

Public authorities are reminded to use their websites to publish their records and information proactively, and provide the information about applicants’ rights and related procedures under the FOI Law.

RESPONSIBILITY D:

REFER TO THE APPROPRIATE AUTHORITIES CASES WHERE IT APPEARS THAT A CRIMINAL OFFENCE HAS BEEN COMMITTED

While the Commissioner continues to hope that her duties under this section will rarely present, unfortunately on at least two occasions, it appears as if a public authority may have failed to identify and provide records responsive to a request.

ICO staff is now able to upload some content to the website, resulting in more timely updates, but some restrictions still apply. The public is invited to provide any feedback on the website or FOI-related experiences by emailing the ICO on [email protected]. Additionally, to subscribe to the ICO quarterly Newsletter “ICON: and/or receive Reports of the ICO, Hearing Decisions or Investigation Reports please email [email protected].

The ICO Facebook page http://www.facebook.com/ICO.CaymanIslands has been revived and consistently maintained. The ICO will continue to use this tool as an inexpensive means of public outreach.

NOTE:

This is NOT a full report and to download the complete 2012/2013 Second Quarter Report October-December 2012 go to:

http://www.infocomm.ky/