The Editor Speaks: Peter Polack highlights slowness to FOI requests in the very place it should not happen – the Judiciary.
Cayman lawyer Peter Polack has been making a number of Freedom of Information Requests with some success but it has largely been a battle. I must commend his perseverance.
The main area Polack has met resistance and incredible slowness is from the Clerk of the Court office regarding Justice of the Peace regulations. He first contacted the Clerk of the Court on July 13 2014 with “Complaint -Regulation 10 of the Justice of the Peace Regulations (2013 – William I Wood JP” as follows:
To: Clerk of Court
Complaint is made pursuant to Regulation 10 of the Justice of the Peace Regulations (2013) that on 22 November 201 Justice of the Peace William I. Wood issued a search warrant in the matter of Andre Woodman based on an unsigned complaint and information by DC Winston Harrison of the RCIPS.
A copy of the complaint and information supplied by the Office of the Director of Prosecutions is attached hereto.
The search warrant (attached) was issued without the Complaint (attached) being executed.
The search warrant was executed by DC Harrison at 5:47 am which was one hour and nine minutes before sunrise in breach of Section 27(1) of the Criminal Procedure Code.
The Summary Court was notified of this matter on 29 May 2014.
By email of 30 May 2014 the Commission of Police was notified of this matter to which there has been no acknowledgment nor action.
By copy email of 30 May 2014 the Director of Public Prosecutions was notified of this matter to which there has been no acknowledgment nor action.
By email of 30 May 2014 Eric Bush the Chief Officer of the relevant portfolio was notified of this matter to which there has been no acknowledgment nor action.
Regards
Peter Polack
Legal Counsel for Andre Woodman
After receiving no reply and much patience he wrote again to Tabitha Philander, Clerk of Court Information Manager on September 22 2014, a reminder on September 22 2014 and another on September 29 2014.
Polack received no replies and it was only after he sent the following was there any response, although it was not worth the wait.
From: Peter Polack
Sent: Monday, October 06, 2014 8:29 AM
To: tabitha philander
Cc: Manderson, Franz; McLaughlin, Alden; mckeevabush; Bulgin, Samuel; Bush, Eric
Subject: Complaint -Regulation 10 of the Justice of the Peace Regulations (2013) – William I Wood JP
Further to my emails of 13 July 2014, 22 September 2014, 25 September 2014 and 29 September 2014 kindly advise on status of this matter.
As you are aware this complaint arises from a pending criminal case and you are put on notice of my intention to bring this delinquency to the attention of the presiding magistrate with the possibility of a delay due to non-action on this pressing complaint.
Regards
Peter Polack
This was the reply:
From: Tabitha Philander
Sent: Sunday, October 12, 2014 3:32 PM
To: Peter Polack
Subject: RE: Complaint -Regulation 10 of the Justice of the Peace Regulations (2013) – William I Wood JP
Good afternoon Mr. Polack,
I write with respect to your emails on the captioned. Please note that the Justice of the Peace Regulations (2014) are not yet in effect, and as such I am unable to address the complaint made thereunder. My most recent check (last week) informs me that the Regulations are still not yet in effect.
All for your information,
Kind Regards,
Tabitha Philander
Clerk of Court
Information Manager
Judicial Administration
P.O. Box 495
Grand Cayman KY1-1106
Note there was not even the courtesy of an apology for the incredible delay in replying, especially seeing Polack had informed Ms Philander the information was required pending a criminal manner.
Not surprising Polack is very annoyed viz:
From: Peter Polack Sent: Sunday, October 12, 2014 5:44 PM
To: ‘Tabitha Philander’
Cc: ‘Manderson, Franz’; ‘Alden.McLaughlin; mckeevabush; ‘MikeTAdam; arden; ezyhealth; ‘Samuel.Bulgin; Nicola.Williams; ‘Wendy Ledger’; Deon Ebanks (Subject: RE: Complaint -Regulation 10 of the Justice of the Peace Regulations (2013) – William I Wood JP
Further to my emails of 13 July 2014, 22 September 2014, 25 September 2014,29 September 2014 and 6 October 2014 I note that it has taken three months to advise that the JP Regulations are not in force.
By copy email I draw this matter to the attention of the Deputy Governor as a fresh complaint pending the regulations, instead of the Attorney- General under the unimplemented Regulations.
On that matter I draw the attention of the Deputy Governor to the Review of the Justices of the Peace Regulations as part of the Review of the Public Service in January 2014 found at http://www.gov.ky/portal/page?_pageid=4741,7910879&_dad=portal&_schema=PORTAL and seminars for the said justices until May 2014 referred to in the Radio Cayman news release found at http://www.radiocayman.gov.ky/justices-of-the-peace-in-training&h=1
As you are aware this complaint arises from a pending criminal case and you are put on notice of my intention to bring this delinquency to the attention of the presiding magistrate with the possibility of a delay due to non-action on this pressing complaint.
The Deputy-Governor is put on notice of the intention of defence counsel to summon him to the next hearing of this matter in Summary Court on 25 November 2014.
The Complaints Commissioner and the media is now copied on this matter of delinquency, delay and denial of justice.
Regards
Peter Polack
I cannot blame Polack in any way for having to resort to making this public to the media. The complete lack or attempt an apology is paramount in Philander’s only response after 3 months had elapsed and his 12 October email to her. He had been very patient until then.
Do not think FOI Requests are only slow in the Cayman Islands. Unfortunately it seems to be the norm in government agencies throughout the world where such legislation has been enacted. The following is from a New York Times article published in January 2012 and written by Matthew L. Wald:
Slow Responses Cloud a Window Into Washington
WASHINGTON — Is a FOIA delayed a FOIA denied?
“FOIA” is the Freedom of Information Act, under which federal agencies are supposed to promptly release documents requested by the public. In the dialect of Washington, it can be a noun or a verb. But the FOIA process is seldom prompt.
On Jan. 4, The New York Times received a final response from the Defense Department to a FOIA request made on June 1, 1997. The department sent it by Federal Express, Priority Overnight.
The courts have ruled that government agencies must respond to FOIA requests in 20 days. But The Times’s case was hardly a record; some requests are approaching 20 years old.
The intent of the Freedom of Information Act was to provide citizens, scholars and journalists a window into the workings of their government, but sometimes it seems as though the shades are drawn.
For example, the National Archives and Records Administration says its oldest request is from September 1992, asking for information from the White House Office of Science and Technology about nuclear weapons safeguards, testing and disarmament negotiations. The documents requested are from 1961. Another request from 1992 is for State Department documents relating to nuclear weapons accidents in 1958 through 1960. A third asked, in 1993, for documents dating to the American occupation of Italy after World War II, specifically about the Sicilian Mafia.
These requests have been neither denied nor approved; they are in limbo, awaiting the attention of someone in another agency with the authority to decide what can be declassified. The National Archives does not have that authority.
Miriam M. Nisbet, director of the office of government information services at the National Archives, said of the lengthy delays: “I can’t defend that. You’re not going to get anybody who’ll say it’s just fine that it takes that long.” Ms. Nisbet is a kind of ombudsman of the FOIA program, mediating some disputes.
Gary M. Stern, the chief FOIA officer of the National Archives, acknowledged, “It’s slower than any of us would like.” Some requests are from people writing books, and the book has already been published, he said, and “then a delay is in effect a denial.” Some are from journalists who may have lost interest in the subject matter over the years, he said, and the cases can drag on for so long that “some are from people who are dead.”
But in some cases, he said, while a request was still technically open, part of it had been fulfilled years earlier. And material that was too late for an article or a book could be available to others later, he said.
Asked whether a delay of 10 years or more constituted a de facto denial, Melanie A. Pustay, director of the Office of Information Policy at the Justice Department, said, “The final goal is to reduce backlogs and eliminate them whenever possible, which means both reducing the numbers and the age.”
Under a 2007 law, the agencies must report to the Justice Department annually on their 10 oldest cases, which she said was encouraging them to act on the old cases. The Senate has also unanimously passed a bill by the sponsors of the 2007 law — Senators Patrick J. Leahy, Democrat of Vermont, and John Cornyn, Republican of Texas — that would speed up the process, but the House has not acted.
When President Obama took office, he declared that the federal government should operate under the presumption that documents should be released, unless there was a reason not to do so. The Bush administration had tightened up on releases after the Sept. 11 attacks. But the delays are still extensive.
This year, The Associated Press obtained e-mails indicating that one reason for delays was that political appointees of the Obama administration were screening the requests. (The A.P. obtained parts of the e-mails through FOIA requests, but some material was deleted under a provision of the law that allows the government to keep its internal deliberations secret; it said it later got the full texts, but it did not say how.)
Mr. Cornyn said there had been some progress in providing citizens their “fundamental right to know what their government is doing.” But, he said, “more needs to be done to improve responsiveness, reduce litigation and remove politics from the process.”
The provision of the 2007 law making the agencies report their 10 oldest information requests may be working. The Defense Department said in an internal newsletter recently that in 2011 it resolved its 10 oldest.
Documenting the delays, the Defense Department filed a report for the 12 months that ended Sept. 30, 2010, showing that a dozen of the requests that were still open went back to the last century, and several other federal agencies show unresolved requests going back at least 10 years.
The National Security Archive, a nonprofit group based in Washington that is a heavy user of the Freedom of Information Act, reported last July 4, on the 45th anniversary of President Lyndon B. Johnson’s signing of the law, on some older cases that were still open. Those included a 1995 request for information on Pakistani surface-to-air missiles and a 1998 request to the George Bush Presidential Library for documents relating to the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing happened in 1988.
The Times’s request that drew the response on Jan. 4 was made by a reporter, Philip Shenon, who left the newspaper three and a half years ago. It concerned United States government contacts with the Khmer Rouge, which ruled Cambodia from 1975 to 1979. At the time of the information request, the group still had a guerilla army in the jungles of Cambodia.
A government employee who was involved in The Times’s 1997 request in its later stages said, “It sounds like it got into somebody’s ‘deal with later’ file.” The employee asked not to be further identified because, he said, he feared for his job.
In a statement, the United States Transportation Command, the Defense Department agency that sent the response by overnight mail, said, “It is a painstaking process to coordinate with all agencies that may be involved to provide releasable information the public has a right to know.”
In fact, Mr. Shenon had been seeking information from several government agencies, and he received some partial releases in earlier years.
The statement noted that the agency had to avoid divulging classified or sensitive information and had to observe some other exceptions to the Freedom of Information Act, including requirements to “enhance the effectiveness of law enforcement agencies, protect sensitive business information and preserve privacy.” It did not explain how those last three might pertain in this case.
The law also allows agencies to withhold information that infringes on the privacy of third parties.
While the response to Mr. Shenon was to a question that is no longer so pressing, the government appears to have put significant labor into generating it. It consisted of 12 pages, with all but 10 paragraphs redacted.
Ms. Nisbet of the National Archives said that improvements may be coming. The Environmental Protection Agency has a computer system that it uses to post draft rules and accept public comments; it is working on adapting that to handling FOIA requests. The system could let people track the status of their requests as they would a package sent by the United Parcel Service. It would also make public who had requested what information, a system that would spread information more easily but make it difficult for journalists seeking scoops.
Polack’s other and more successful FOI requests will be the subject of other articles. Watch this space.
