Quarterly Report for Cayman Islands ICO

2014-2015 SECOND QUARTER REPORT

1 October-31 December 2014

The purpose of this Quarterly Report is to ensure the ongoing transparency and accountability of the Information Commissioner’s Office (ICO) in the discharge of its statutory responsibilities under the Freedom of Information Law 2007 (FOI Law). This Report focuses on the operations of the ICO itself, and also provides broader statistical information on the operation of the FOI Law in the Cayman Islands government.

2014-2015 Second Quarter Report

1 October-31 December 2014

TABLE OF CONTENTS

Quarter Highlights

Message from the Acting Information Commissioner

Information Manager Survey Results

The EY Report and The ICO

Investigation of Appeals

Hearing of Appeals

New Hearings Commenced

Hearing Decisions Issued

Release of Responsive Records

Judicial Review

Government FOI Requests

Meetings and Presentations

Training

Outreach and Promotion

Administration

QUARTER HIGHLIGHTS

 The full results of the Information Manager Survey conducted in the last quarter were released.

 The Acting Information Commissioner responded to the EY Report on the review of government services, which included two suggestions that may impact the Information Commissioner’s Office (ICO): (1) the possible sharing of administrative staff with the Office of the Complaints Commissioner and the Office of the Auditor General; and (2) the possible development of an Ombudsman’s Office which would amalgamate ICO and OCC with a yet to be formed Police Complaints Commission.

 The ICO conducted training for HM Custom’s Department and the Judicial
Administration.

 The ICO’s Appeals and Compliance Analyst went on a secondment with the
Ministry of Home Affairs.

The Information Commissioner’s Office (ICO) is an independent entity responsible for hearing, investigating and ruling on appeals under the Cayman Islands’
Freedom of Information Law, 2007 . The ICO also promotes access rights to Government records and monitors compliance of the public
authorities in upholding the FOI Law.

MESSAGE FROM THE ACTING INFORMATION COMMISSIONER

It is my pleasure to welcome you to the Second Quarterly Report of the Information
Commissioner’s Office for the 2014-15 financial year.

The biggest news this quarter was the release of the EY Report on the review of government services, which contains two suggestions related to the ICO: (1) the merger of the administrative functions of the Information Commissioner, the Complains Commissioner and the Auditor General; and (2) the amalgamation of the ICO, OCC and a yet to be formed Police Complaints body under a single Ombudsman.

Although these suggestions do not fall within EY’s proposed “quick wins” or high priority recommendations, they are being considered by the Cabinet, and as a result the appointment of a permanent Information Commissioner continues to be postponed.

The uncertainty surrounding the ICO’s future is not helpful. It has the potential of weakening the authority and independence of the Office, and risks undermining the already difficult task of many civil and public servants including Information Managers and ICO staff, who make the right to access possible in the Cayman Islands on a daily basis. The continuing vacancy at the top of the ICO has at times left our small Office scrambling to meet reporting and hearing deadlines, and hampers our ability to fully meet our statutory mandate e.g. by conducting proactive compliance investigations.

Whatever the best way forward may be, the Premier and the Cabinet are to be commended for publishing the EY Report even while many questions remain unanswered. The FOI Law is explicitly intended to foster public participation in decision making, and recognizes that there can be no informed debate without timely transparency. While some public authorities regularly publish reports and decisions upfront, I encourage many more to follow suit and engage more effectively with the general public by disclosing more of their records proactively.

Regardless of the uncertainties ahead, the ICO staff and I continue to ensure that the right to access government information remains protected and applied as intended in the Freedom of Information Law.

Jan Liebaers
Acting Information Commissioner

INFORMATION MANAGER SURVEY RESULTS

While some preliminary results were already announced during Right to Know Week 2014, the full “Survey of Information Managers Report 2014” was published in November together with extensive survey data for future analysis and comparison.

The Survey was triggered by strong anecdotal evidence that Government was not living up to its obligation to train and support Information Managers (IMs). The ICO’s Report paints a complex picture: on the one hand, most IMs are experienced, mid-level public servants who have executed the role of IM for several years. For the most part they can count on adequate support within their organizations, have benefited from past training and advice, and are keen on renewing and enhancing their knowledge by taking additional training.

However, the Report also highlights significant shortfalls:

 Some IMs have to fulfil their important and difficult role without any training or anywhere to turn for obtaining case-specific advice.
 Some IMs do not have consistent access to other staff members, responsive
records and support from senior management within their own organization.
 Many IMs do not have access to the central FOI tracking system, have not been trained to use it, and consequently do not use it.
 Not surprisingly, there is a higher than average turnover of IMs in government, as the role of IM is often passed to already overburdened staff.

The Report concludes that there is an urgent need for government to renew its commitment to FOI by providing ongoing training and advice to IMs in a manner consistent with the resources already allocated for that purpose by the Legislative Assembly.

Without training and advice for IMs, many public authorities will not be able to meet their legal obligations under the FOI Law. The lack of training and disuse of the tracking system are in direct violation of applicable statutory requirements.

By the end of the year the Cabinet Office announced that it was preparing to undertake a major training effort early in the new year.

For the full report and survey data please see www.infocomm.ky/document-library .

THE EY REPORT AND THE ICO
After publication of the EY Report in September, the Portfolio of the Civil Service solicited the Acting Information Commissioner’s views on two EY proposals concerning the ICO. The first proposal is to amalgamate the administrative functions of the ICO, the Office of the Complaints Commissioner (OCC) and the Office of the Auditor General (OAG). The second is to amalgamate the ICO with the OCC and a yet to be formed Police Complaints Commission under a single Ombudsman.

The Complaints Commissioner and the Acting Information Commissioner met with the EY Team on two occasions earlier in the year to discuss these ideas and express our concerns, which we thought were accepted by EY.

While the first proposal, the administrative merger of ICO, OCC and OAG, could work as long as there is no interference with operational mandates, any advantages or savings may not be clear-cut:

The administrative budgets concerned are minuscule. The ICO’s single administrative position represents less than 10% of the ICO’s annual budget, which itself is only about 0.13% of the overall government budget. Even if this position was taken away from our budget completely, the savings for ICO would therefore be no more than 0.013% of the overall Government budget.
 The operational duties performed by the ICO’s Office Manager (e.g. promotion and outreach) could be severely jeopardized by the proposed merger.
 Fully shared administration could undermine the ability of all three offices to
provide mutual independent oversight.

In any event, there are already cost saving initiatives in place: the ICO, OCC and OAG are planning for an imminent co-location under a single office lease from January 2015, and the ICO has been sharing financial services with Legal Department, DPP, Judicial Administration and OCC for the past 2 years.

The second suggestion intimated in the EY Report, i.e. the amalgamation of ICO and OCC into a single Ombudsman’s Office, while not impossible to succeed, represents significant and unnecessary risks for independent oversight in the Cayman Islands Government:

The reasons for such a drastic restructuring have not been clarified. As far as the ICO is concerned, “bigger” is not necessarily “better”. The Information Commissioner already holds significant decision making and investigatory powers under the Law. The ICO is very effective, and despite its small size and budget has a substantial impact on Government.
 While superficially ICO and OCC may appear similar, in reality the two offices have fundamentally different mandates, ambits, expertise, skills, methodologies and powers. There is no operational overlap that can be exploited to save money.
The effectiveness of government oversight relies heavily on trust in the independence of decision making. The proposed course of action represents considerable risks to the perception and reality of independence, trust, integrity and “brand recognition” which the ICO has been able to build up in the last 6 years, and on which the success of FOI depends.
 The funding requirements for the new Ombudsman post and the new Police
Complaints body mean that savings would most likely be elusive.

 Eliminating any specialty positions would have a serious detrimental impact on the operations of the ICO. This includes the Information Commissioner which is a very hands-on position without which our Office would find it hard to function properly.
 The Ombudsman would likely also have to oversee Data Protection (DP) in the
near future, further complicating the grouping of non-alike functions in a single office. It is hard to imagine that any individual in that post would have the necessary expertise in all four operational areas (ICO, OCC, Police Complaints and DP), or the time to take a hands-on approach, yet he/she may be ultimately responsible for decision making.
 Amalgamation risks weakening the high level of independence required in each area, and may in particular undermine Cayman’s bid for international “adequacy status” under EU privacy law, one of the stated aims of the anticipated Data Protection Bill.
 It is not clear whether mutual independent oversight between the constituent parts of an amalgamated office could be maintained.

As a sensible alternative the Acting Information Commissioner suggested the amalgamation of OCC with Police Complaints on the one hand, and ICO with DP on the other (the latter is already being anticipated in the Data Protection Bill). This would group alike functions together, while keeping those functions that have very little in common quite separate.

INVESTIGATION OF APPEALS

During this quarter, 4 new appeals were opened, 3 were closed and 2 progressed to a hearing for consideration by the Acting Information Commissioner.

The following appeals were closed without a formal hearing:

Appeal 035/13 – Department of Planning
An applicant requested records related to rules for the hearing of appeals by the Planning Appeals Tribunal (“PAT”) and all previous PAT decisions. The PAT rules were immediately released, however, no PAT decisions were disclosed. The applicant did not receive a response after making a request for internal review and subsequently appealed to the ICO. This office investigated the matter and the department agreed to gradually make all PAT decisions available to the public on its website. The disclosure took much longer than the time allowed under the FOI Law, however, the applicant agreed to allow the Department additional time for disclosing the records.

Appeal 005/14 – Ministry of Education
An application was made for records regarding proposals for cost savings for the provision of education services on Cayman Brac. The Ministry refused access to the records on the grounds that they were exempt because they were opinions, advice or recommendations prepared for Cabinet and that their release would be likely to inhibit the free and frank exchange of views on the subject within government. The applicant disagreed with the Ministry and appealed to the ICO. The ICO reviewed the records and recommended that they all be disclosed to the applicant because it was not clear how exactly the claimed exemptions applied to the requested records. The Ministry reversed its decision and released the records in full.

Appeal 012/14 – Attorney General
An applicant requested records related to a parcel of land in West Bay which had been the subject of contention between the government and the owner(s) for several decades. The AG did have records related to the parcel of land in question and disclosed some of them. However, the public authority also withheld some records on the ground of legal professional privilege. The applicant appealed to the ICO. Upon reviewing the records the ICO informed the applicant that the AG had a reasonable basis for exempting the records from disclosure but if the applicant wished the matter could be brought before the Acting Information Commissioner by way of a formal hearing. The applicant accepted the preliminary analysis of the ICO and did not request that the matter proceed to a hearing.

HEARING OF APPEALS

New Hearings Commenced
Hearing 39-02513 – Department of Planning, 24 November 2014
An FOI request was made for records concerning the planning application of the Kai Village Planned Area Development in Cayman Kai. At Hearing, the Acting Information Commissioner is to consider and decide whether the records may be exempted under section 17(a) of the FOI Law. The Commissioner will also decide: whether access to the records was already provided pursuant to another enactment, namely the Development and Planning Law (2011 Revision) and the Development and Planning Regulations (2011 Revision), in accordance with section 6(4) of the FOI Law; whether the provision of paper or electronic copies of drawings or plans would be an infringement of intellectual property rights under the Copyright Act 1956 as per section 10(3)(b) of FOI Law, taking into consideration section 54(3)(b) of the FOI Law; and, whether a reasonable search was conducted to identify the responsive records as per regulation 6(1) of the FOI (General) Regulations 2008.

Hearing 43-00814 – Portfolio of Legal Affairs, 22 October 2014
An FOI request was made to the public authority concerning records related to settlement agreements in the course of litigation against the Cayman Islands Government. The Portfolio of Legal Affairs denied access based on the following sections of the FOI Law: 3(5)(a) regarding the judicial functions of the court, 17(b)(i) regarding disclosure which would cause an actual breach of confidence, and 23(1) in regards to personal information. These sections will be considered by the Acting Information Commissioner at hearing.

Hearing Decisions Issued
Decision 38-02413 – Department of Planning, 16 October 2014
On 28 May 2013 an applicant made a comprehensive request for access to records relating to the Kai Village Planned Area Development to the Planning Department, under the Freedom of Information Law, 2007.

In its response the Department offered access to the responsive records by means of onsite inspection in its offices. It also withheld a record (to which later three more records were added) claiming the exemption in section 17(a) which protects legal professional privilege. The Department claimed that it responded under the provisions of the Development and Planning Law (2011 Revision) and the Development and Planning Regulations (2011 Revision), pursuant to section 6(4) of the FOI Law, but also informed the Applicant of his right to an internal review under the FOI Law.

The request was internally reviewed by the Chief Officer, and was then appealed to the Information Commissioner’s Office. During the appeal numerous additional records were disclosed on the Department’s website, including all the drawings and plans relating to the proposed development. The dispute could not be resolved amicably and proceeded to a formal hearing before the Acting Information Commissioner.

In the Hearing Decision the Acting Commissioner found that three records were exempted under section 17(a) because they were privileged from production in legal proceedings on the ground of legal professional privilege. One record was not exempted under section 17(a) since it was older than 20 years, but remained privileged by virtue of the common law of legal professional privilege, and as such was subject to section 3(7) which stipulates that the FOI Law does not abrogate “any other law that restricts access”.

The Acting Commissioner found that the Department was not justified in applying section 6(4)(a) since the responsive records are not “open to access by the public pursuant to any other enactment” under the Development and Planning Law and Regulations.

Since all the relevant responsive records were posted on the Department’s website, the Acting Commissioner did not rule on the question whether disclosing those records would be an infringement of the Copyright Act 1956 (which applies in part in the Cayman Islands).

Finally, the Acting Commissioner found that the Department had not made reasonable efforts to locate the responsive records, as it was required to do under regulation 6(1) of the Freedom of Information (General) Regulations, 2008. Only in the course of the ICO appeal was a thorough search conducted.

The full text of Decision 38 is published on the ICO website.

Decision 40-02813 (Part 2) – The Cabinet Office, 14 November 2014
A request was made in July 2013 for “agendas and minutes of the Cabinet meetings since 1 January 2012”. The Cabinet Office initially withheld the records relying on the exemption relating to consultations and deliberations arising in the course of proceedings of the Cabinet, and also deferred access to reports, and claimed that complying with the request would constitute an unreasonable diversion of resources.

During the course of the appeal with the ICO the Applicant agreed to narrow the request to “topics, motions, decisions, and records containing material of a factual, scientific or technical nature” relating to the eight Cabinet meetings prior to 20 December 2012. IN the course of the appeal 34 of 39 requested reports were disclosed, but no minutes were released.

In Decision 40 – Part 1, the Acting Information Commissioner found that as a reasonable period of time had passed after the preparation of the outstanding five reports, the deferral was unwarranted, and ordered the records disclosed. He also found that complying with the narrowed request would not unreasonably divert the resources of the Cabinet Office, and returned the request to the Cabinet Office for further review and a new hearing submission, in which the public authority could apply any exemption or exception (excluding section 9(c) in regards to an unreasonable diversion of resources) which it considered appropriate.

In the second part of the Decision the Acting Information Commissioner found that the requested parts of the Cabinet minutes are exempted under section 19(1)(b) as “consultations and deliberations of proceeding of the Cabinet”. The administrative parts of the Cabinet minutes (e.g. the record of attendance) are not covered by the exemption, but fall outside the scope of the request.

The Acting Information Commissioner also noted that the FOI Law does not prohibit disclosure of exempted information on a voluntary or proactive basis.

The full text of Decision 40, Parts 1 and 2 are published on the ICO website.

Release of Responsive Records
There were no orders by the Acting Information Commissioner to comply with this quarter, in regards to the release of responsive records.

JUDICIAL REVIEW

As reported in the previous quarterly report, it is expected that a “rolled-up” hearing in the judicial review of the Acting Information Commissioner’s Decision in Hearing 41, involving records of the Governor’s Office, will take place early in 2015. Preparations for the hearing are underway as both sides prepare their case.

GOVERNMENT FOI REQUESTS

Between 1 October2014 and 31December 2014, 206 Freedom of Information requests were logged into the central FOI tracking system by public authorities. This is a 31%increase % compared to the same time in the previous financial year. During the same period, 133 requests were closed. A total of 49 out of 90 public authorities received requests in this period.

MEETINGS AND PRESENTATIONS

The following were attended by the Acting Information Commissioner.

 Government wide strategic planning retreat, 6 November 2014
 Deloitte Cybersecurity presentation, 9 December 2014
 Meeting with the visiting Data Protection Commissioner for the Bahamas, Ms.
Sharmie Farrington Austin, 10 December 2014

TRAINING
 The ICO team attended various sessions throughout Government Professional
Development Week held 11-14 November 2014.
 The ICO is pleased to note that the Customs Department now includes FOI training as part of the standard training package it provides to new Customs Officers. The Acting Deputy Information Commissioner provided FOI training to new Customs Department recruits in December 2014.
 In an investigation conducted by the ICO it was recommended that all Judicial Administration staff participate in an FOI refresher course. The Court Administrator accepted the ICO’s recommendation and the training was completed within six months of the recommendation being made. Since no other training is available, it was provided by the ICO in a series of two-hour sessions.
 The ICO continues to provide a brief introduction to the work of the Office at the
monthly Civil Service new hire orientation sessions and answers queries about the Office and FOI in general.
 The FOI Unit of the Cabinet Office will conduct a series of FOI training sessions in the course of the next quarter, aimed at Information Managers and other audiences within the broader Public Sector.

OUTREACH AND PROMOTION

The ICO continues to assist the public with various FOI related queries which do not constitute appeals under the Law, and can range from helping someone formulate an FOI request, to informing an applicant of their rights under the Law and assisting a public authority to ensure that proper procedures are followed. While the ICO never comments on the appropriateness of how a public authority applies an exemption before an appeal is launched, assistance is provided on the processing of requests in compliance with the

Law, and the general meaning of exemptions or exceptions. During this quarter the team logged 30 of these requests for assistance.

In addition, the ICO regularly provides media interviews, issues press releases and the ICO Newsletter (ICON), and maintains a website and Facebook page.

ADMINISTRATION
Preparations are underway for the planned office relocation from Elizabethan Square to the third floor of Anderson Square. The co-location of the ICO with the OCC and the OAG under a single lease, with shared kitchen, bathroom, conference and meeting room is expected to take place in January 2015.

The ICO was severely short-staffed in the second quarter, as the Information Commissioner position remains vacant, and the Appeals and Compliance Analyst, Clara Smith, was seconded to the Ministry of Home Affairs. While the ICO found it difficult to cope with only four staff members, Mrs. Smith’s secondment request was granted in order to provide an opportunity for personal growth and development.