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News Releases


ICO 2014-2015 Second Quarter Report Print E-mail


ICO 2014-2015 Second Quarter Report, Oct-Dec 2014

 
Press Release: Cayman's FOI Law gets top rating Print E-mail

8 May 2015

Centre for Law and Democracy rating gives Cayman Islands FOI Law top marks

The Information Commissioner’s Office (ICO) is pleased to announce that the Centre for Law and Democracy (CLD) has given the Cayman Islands Freedom of Information Law high marks in its Global Right to Information Rating. 

CLD’s rating tool is intended to analyze the quality of Freedom of Information (FOI) legislation around the world, and has been in existence for a few years.  The tool rates legislation using set criteria measuring different aspects of the legislation, including the general right to access, the scope of the legislation, provisions for requesting information and appeals, exceptions and refusal mechanisms, sanctions and protections, and promotional measures. 

The Cayman Islands FOI Law received a high overall score of 112 out of a maximum of 150 points, placing the country 13th of the 103 countries rated to date, well ahead of the United Kingdom, New Zealand, Ireland, the United States, Jamaica, Australia and many others.   In the region, only Antigua beat the Cayman Islands, with a score of 113 points.

Amongst other things the Cayman Islands FOI Law received high marks for its clear formulation of the general right to access, the broad scope of the Law and its detailed procedures for requests, the nature and scope of decision making powers of the Information Commissioner, broad grounds for appeal, the range of sanctions that can be imposed by the Commissioner, and the legal requirements for promotion and training.  

However, CLD deducted points because, amongst other factors, the Law provides that some entities and functions are entirely excluded from its application, the FOI Law is trumped by all other laws restricting access, some exceptions fall outside international norms, not all exemptions are subject to harm and public interest tests, and in limited circumstances the Law provides for overriding certificates that cannot be challenged in court.

The Acting Information Commissioner, Mr. Jan Liebaers, thanked CLD for conducting the analysis, and said: “These results underscore what has been confirmed time and again these last few years, namely that the Cayman Islands FOI Law is a positive model for the region, and beyond.” 

Mr. Liebaers clarified that CLD’s rating exercise did not look into the question of how the legislation is being applied in practice, but he added that the Cayman Islands would undoubtedly do very well in that regard as well.  He said: “while challenges undoubtedly remain and government could do more - for instance by more readily acting in the spirit of the FOI Law and disclosing information proactively - the overall Cayman Islands FOI regime is working well and should be safeguarded from any unnecessary changes.”

For a link to the announcement by the Centre for Law and Democracy, please see: http://www.law-democracy.org/live/significant-differences-in-caribbean-rti-rating-scores/

 
Hearing Decision 43 involving FOI request for settlement payments Print E-mail

April 13 2015

 

An Applicant made a request under the Freedom of Information Law 2007 for the amounts of the settlement payments made to Messrs. Rudolph Dixon, Stuart Kernohan and Burmon Scott by the Government. The Portfolio of Legal Affairs refused access to the information on Mr. Kernohan on the basis of section 3(5)(a) which places records resulting from judicial functions outside the scope of the FOI Law, and withheld all three agreements pursuant to the exemptions in sections 17(b)(i) (actionable breach of confidence), 17(b)(ii) (contempt of court), 23(1) (personal information) and 20(1)(d) (effective conduct of public affairs).

In Hearing Decision 43-00814, the Acting Information Commissioner rejected the application of section 3(5)(a) to the Kernohan agreement since that agreement is separate from the Court Order itself, but upheld the decision of the Portfolio of Legal Affairs to exempt all three agreements on the basis of the exemption in section 17(b)(i) as it would be an actionable breach of confidence to disclose them.

As the Acting Commissioner found that the exemption in section 17(b)(i) applied, the other exemptions were not considered.

In examining the application of section 17(b)(i), the Acting Commissioner also made recommendations on the use of confidentiality clauses by Government.  In the Decision Mr. Liebaers states, “public authorities should carefully consider whether confidentiality is necessary and appropriate before agreeing to sign an agreement containing a confidentiality clause, and should not use such clauses unless absolutely necessary, such as may be the case in the course of litigation.”

The full text of Decision 43-00814 is available on the ICO website at www.infocomm.ky/appeals.

 
Hearing Decision 39 issued involving the Planning Dept Print E-mail

4 March 2015

This Hearing results from an FOI request that was made for access to records relating to the Kai Village Planned Area Development to the Planning Department under the Freedom of Information Law, 2007. It is the third Hearing by the Acting Information Commissioner on this topic.

In its response to the request the Department offered the Applicant 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) relying on the exemption in section 17(a) of the FOI Law which protects legal professional privilege. The Department also 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.

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

In Decision 39 the Acting Commissioner, Mr. Jan Liebaers found that three of the records were exempted under section 17(a) because they were privileged from production in legal proceedings on the ground of legal professional privilege. However, one record was not exempted since it was more than 20 years old, and was ordered disclosed.

The full text of Decision 39 is available on the ICO website at www.infocomm.ky/appeals. 

 
New Office Location Print E-mail

16 February 2015

The ICO has moved from Elizabethan Square and is now located at:

 
3rd Floor, Anderson Square
64 Shedden Road
George Town, Grand Cayman


 
ICO Newsletter, Dec 2014, ICON Issue 19 Print E-mail

ICO Newsletter - ICON 19, December 2014

 
ICO 2014-2015 Second Quarter Report Print E-mail

 ICO 2014-2015 Second Quarter Report, Oct-Dec 2014

 
Decision 40-Part 2 issued regarding Cabinet Minutes Print E-mail

17 November 2014

ICO issues Hearing Decision 40 –Part 2 involving FOI request for Cabinet Minutes

The Information Commissioner’s Office issued its first ruling on a request for access to minutes of the Cabinet in Decision 40 –Part 2.

While the substantial parts of the Cabinet minutes are exempted under the Freedom of Information Law, 2007 section 19(1)(b) relating to “consultations and deliberations of proceeding of the Cabinet”, the Acting Information Commissioner, Mr. Jan Liebaers, did not rule on the administrative parts of the Cabinet minutes, which fell outside the request.

In the Decision, it was noted that the FOI Law does not prohibit disclosure of exempted information on a voluntary or proactive basis.

Mr. Liebaers said, “I have encouraged government on numerous occasions, and I continue to do so, to consider releasing more records proactively, rather than wait for an FOI request. The Deputy Governor has recently shown the way with the proactive release of credit card expenses and travel costs, but much more can be done. Particularly those records that deal with matters of great public interest, especially if they are being requested frequently and are not exempted, should be made available without people having to ask for them.”

Background:

The original request was made in July 2013 under the Freedom of Information Law, 2007, for “agendas and minutes of the Cabinet meetings since 1 January 2012”. The Cabinet Office initially withheld the records relying on exemptions under the FOI Law relating to consultations and deliberations arising in the course of proceedings of the Cabinet, deferred access to reports, and also claimed that complying with the request would constitute an unreasonable diversion of resources.

During the course of the appeal with the Information Commissioner’s Office 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. As a result 34 out of 39 reports submitted to cabinet during that timeframe were disclosed but no meeting 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 be disclosed. It was also found that complying with the narrowed request would not unreasonably divert the resources of the Cabinet Office. As well, it was found that since the Cabinet Office had not yet reviewed the other records in detail, the request be returned 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.

The public is encouraged to read the full text of the Decision, Parts 1 and 2 which can be found on the ICO website at www.infocomm.ky/appeals .

 

 
Information Manager Survey Report, 2014 Print E-mail

4 November 2014

Information Manager Survey 2014 results are in!

The ICO has today released the Information Manager Survey Report, 2014.

In September 2014 the Information Commissioner’s Office (ICO) conducted a survey of Information Managers (IMs) across the Public Sector, focused on identifying the current profile of IMs, their experiences and training needs. The survey came about as the ICO has become increasingly concerned about the dwindling support and training available to IMs. The survey was anonymous and voluntary,and a total of 90 individuals participated, which equates to a response rate of 63%.The survey shows that most IMs have received past training and advice. They have several years of experience and can count on adequate support within their organizations to fulfill their role well. A majority of IMs are keen on renewing or enhancing their knowledge by taking additional FOI training. However, especially new IMs have not been trained and appear to have nowhere to turn for casespecific advice. Some of them do not have consistent access to people, records and senior management support in their organizations, and too many do not use the central tracking system.

Speaking about the survey, Acting Information Commissioner Jan Liebaers said: “IMs are absolutely key to making the FOI Law work. Unfortunately, in recent years the training and advice available to them has declined. I hope this survey can give a new boost to basic training for new IMs and refresher training for experienced IMs to ensure the ongoing success of the FOI Law.”

The full Survey Report and (anonymous) summary data collected via Survey Monkey are available on the ICO website at http://www.infocomm.ky/document-library . View the full report and find out more about what pay grades IMs are in, how many IMs are being recognized (financially or otherwise) for their FOI duties, how many IMs are satisfied with training provided by the FOI Unit and the ICO, how many feel that they have adequate access to colleagues, responsive records and support from senior management needed to fulfil their FOI duties, as well a range of other areas.

 
Hearing Decision 38 issued involving the Planning Department Print E-mail

17 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 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 was privileged from production in legal proceedings on the ground of legal professional privilege 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” which includes the common law.

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 public is encouraged to read the full text of Decision 38 which can be found on the ICO website at www.infocomm.ky/appeals.   

 
FOI Statistical Report 2014 Print E-mail

The Information Commissioner’s Office has released its Annual Statistical Report 2009-2014.

The majority of the Report’s statistics are based on FOI request data captured in the central tracking system (called JADE) by Information Managers across the Public Sector.

The Report contains information on the number of FOI requests received between 2009-2014, the most popular recipient public authorities, response times, request outcomes, exemptions, exceptions and exclusions claimed. It also provides stats on the number and outcome of appeals and hearings dealt with by the Information Commissioner’s Office.

 

 
Hearing Decision 42 issued involving the Planning Department Print E-mail

17 September 2014

Acting Information Commissioner Mr. Jan Liebaers issued Decision 42 on 16 September 2014, regarding an FOI request for records relating to the Kai Village Planned Area Development (KVPAD) in Cayman Kai.

In September 2013 an applicant requested records relating to the KVPAD in Cayman Kai. The Planning Department responded by denying access to some records, requiring that other records could only be inspected in its offices because of copyright concerns, and applying a fee for reproduction of other records which would have to be converted from paper to a digital format as requested by the Applicant.

These matters were appealed to the Information Commissioner’s Office, and only the question of reproduction fees was advanced for a formal hearing decision before the Acting Information Commissioner. Certain procedural questions were also considered.

After hearing written submissions from both parties, the Acting Information Commissioner found that the Planning Department had not breached any legal provisions in respect of the fees, as it was entitled to charge a fee in accordance with the relevant provisions of the Freedom of Information Law, 2007 and the Freedom of Information (General) Regulations, 2008. Some procedural breaches were also noted.

The public is encouraged to read the full text of Decision 42 which can be found on the ICO website at www.infocomm.ky/appeals. 

 
ICO 2013/2014 4th Quarter Report released Print E-mail

ICO 2013-2014 Fourth Quarter Report, Apr-Jun 2014 released.

 
Decision 40 issued involving the Cabinet Office Print E-mail

23 July 2014

Acting Information Commissioner Mr. Jan Liebaers issued Decision 40 on 22 July 2014 regarding an FOI request for Cabinet Minutes.

The original request was made in July 2013 under the Freedom of Information Law, 2007, for “agendas and minutes of the Cabinet meetings since 1 January 2012”. The Cabinet Office initially withheld the records relying on exemptions under the FOI Law relating to consultations and deliberations arising in the course of proceedings of the Cabinet, deferred access to reports, and also claimed that complying with the request would constitute an unreasonable diversion of resources.

During the course of the appeal with the Information Commissioner’s Office 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. As a result 34 out of 39 reports submitted to cabinet during that timeframe were disclosed but no meeting minutes were released.

In Decision 40, 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 be disclosed. It was also found that complying with the narrowed request would not unreasonably divert the resources of the Cabinet Office. As well, it was found that since the Cabinet Office had not yet reviewed the other records in detail, the request be returned to the Cabinet Office for further review and a new hearing submission, in which the public authority may apply any exemption or exception (excluding section 9(c) in regards to an unreasonable diversion of resources) which it considers appropriate.

The public is encouraged to read the full text of Decision 40 which can be found on the ICO website at www.infocomm.ky/appeals .

 
Decision 41 issued involving the Governor's Office Print E-mail

11 July 2014

Acting Information Commissioner Mr. Jan Liebaers issued Decision 41, involving the Governor’s Office on 10 July 2014, concerning records relating to Operation Tempura. In this Decision the Acting Information Commissioner decided that – except for a small segment on page 13 of the Complaint - the records were not exempted under section 20(1)(d) of the Freedom of Information Law, 2007, as claimed by the Governor’s Office, and ordered that the records be disclosed.

Background:
In November 2012 the then Information Commissioner, Mrs. Jennifer Dilbert issued Decision 24-00612, in which she ordered the Governor’s Office to disclose two responsive records relating to Operation Tempura, namely a complaint made to the Governor and the Governor’s response.  This Decision was appealed by the Governor’s Office to the Grand Court by means of a judicial review. The judicial review was conducted by Lord Justice Moses in the matter of The Governor of the Cayman Islands v The Information Commissioner, Cause No. 3 of 2013, dated 23 December 2013. The Court returned the matter to the Information Commissioner for reconsideration whether the records were exempt from disclosure by reason of section 20(1)(d) of the Freedom of Information Law, 2007.

In accordance with the Court’s findings ICO Hearing 41 commenced and after receiving a new submission from the Governor’s Office, the Acting Information Commissioner, Mr. Jan Liebaers, decided that – except for a single segment on page 13 of the Complaint - the records were not exempted under section 20(1)(d) of the Freedom of Information Law, 2007, and ordered that the records be disclosed.

 The public is encouraged to read the full text of Decision 41 which can be found on the ICO website at www.infocomm.ky/appeals 

(See direct link: Decision 41)

 
Decision 37 issued, involving the Planning Dept Print E-mail

29 May 2014

Acting Information Commissioner Mr. Jan Liebaers issued Decision 37, involving the Planning Department on 28 May 2014, concerning records relating to the Kai Village Planned Area Development (“KVPAD”) and minutes of the Central Planning Authority (“CPA”).

The KVPAD planning application in Cayman Kai elicited a lot of public interest, including multiple requests under the Freedom of Information Law, 2007 (“FOI Law”).  In June 2013 an Applicant made a comprehensive Freedom of Information request for records of the CPA relating to the planning application for the KVPAD. The Planning Department provided a partial response, however, the Applicant remained unsatisfied and appealed to the Information Commissioner’s Office (“ICO”).  After a lengthy and complicated pre-hearing investigation by the ICO, the case proceeded to a formal hearing before the Acting Information Commissioner. 

In the Decision a variety of exemptions, exceptions and other provisions of the FOI Law were considered, including legal professional privilege, free and frank deliberation, effective conduct of public affairs, unreasonable diversion of resources, information already in the public domain, timeliness of the initial response, reasons for denial of access, responses pursuant to another enactment, promotion of best record keeping practices, maintaining records in a manner which facilitates access to information, proactive publication, and infringement of intellectual property rights.

In this complicated case several procedural and substantive issues were raised.  Mr. Liebaers ruled that the Planning Department was justified in its use of the exemption in section 17(a) of the FOI Law relating to legal professional privilege, the exception in section 9(c) on unreasonable diversion of resources, and the exception in section 9(d) regarding information already in the public domain.

However, the Planning Department had failed to meet its obligations relating to reasons for denial of access (section 7(5)), conducting a reasonable search (regulation 6(1)), and promoting best practices in records maintenance (section 49(1)).

Since most of the failures were addressed in the course of the appeal, the public authority is not required to take any additional corrective steps, but Mr. Liebaers did recommend that the Planning Department contact the Cayman Islands National Archive in order to prepare for applying the record keeping standards and tools required under the National Archive and Public Records Law (2010 Revision).

The public is encouraged to read the full text of Decision 37 which can be found on the ICO website at www.infocomm.ky/appeals .

 
Own-Initiative Investigation 5 released: Government FOI email addresses Print E-mail

9 May 2014 -

The Information Commissioner’s Office today released Own-Initiative Investigation 5, a report on the functionality of designated Freedom of Information (FOI) email addresses for public authorities.

In 2008 at the time of implementation of the FOI Law, 2007, every public authority within the Cayman Islands Government was designated an FOI email address to facilitate receipt of email requests under the Law.

It came to the ICO’s attention that not all designated FOI email addresses were functioning properly, e.g. in one case messages from outside the Cayman Islands Government email system were blocked. Any problems with the functionality of the designated email addresses could potentially form a serious obstacle to FOI applicants, and the Information Commissioner’s Office decided to investigate and take remedial action.

In the course of the investigation each public authority’s designated FOI email address was tested. An email was sent from a Gmail account created by the ICO for that purpose. The investigation concluded that approximately 10% of designated FOI email addresses were experiencing some level of non-functionality which would affect the general public’s ability to make an FOI request.

Each public authority was contacted with the results of the investigation and corrective measures were taken to ensure that the functionality of all designated FOI email addresses was restored.

 
Press Release: Decision 35 Part 2 issued, 17 March 2014 Print E-mail

Press Release, 17 March 2014

ICO releases Decision 35, Part 2, involving the Ministry of Education, Employment & Gender Affairs

The Acting Information Commissioner Mr. Jan Liebaers issued Decision 35, Part 2, involving the Ministry of Education, Employment & Gender Affairs on 14 March 2014, in regards to a request to amend/annotate personal information contained in a report created by the Human Rights Committee (“HRC”).

The Acting Information Commissioner found that the Ministry was not obligated to amend the HRC Report as requested by the Applicant, but he ordered the Ministry to annotate those parts of the HRC which contain the Applicant’s personal information, in accordance with sections 29 and 31 of the Freedom Of Information Law 2007 (“the FOI Law”), and regulation 19 of the Freedom of Information (General) Regulations, 2008. The specific parts of the report that require annotation in accordance with these provisions are detailed in the Decision.

Background:

In October 2012 an Applicant made a request under the Freedom of Information Law, 2007, to amend/annotate his personal information contained in a report created by the Human Rights Committee in 2007. The HRC was superseded by the current Human Rights Commission, and was at the time funded through the Ministry of Education, Training, Youth, Sports and Culture, the predecessor of the present-day Ministry of Education, Employment and Gender Affairs. The HRC Report is available on a Cayman Islands Government website.

Despite a series of communications and meetings with the Applicant, the Ministry did not amend the record, and in February 2013 suggested that more evidence was required. This led the Applicant to apply for access to the related HRC records. However, in response to this second request, no records were found. Both the request for amendment/annotation of the HRC Report and the request for access to related records were appealed to the Information Commissioner’s Office.

In Part 1 of Decision 35, issued on 5 December 2013, the Acting Information Commissioner decided that a reasonable search for related HRC records had not been conducted, and referred the matter back to the Ministry for a more thorough search. This search has now been completed, but, again, no records were found.

Part 1 of this Decision was issued previously on 5 December 2013.

For full details the public is encouraged to read the full text of Decisions 35, Part 1 and Part 2 which can be found on the ICO website at www.infocomm.ky/appeals .

 
ICO 2013-2014 2nd Quarter Report Print E-mail

The Acting Information Commissioner released the Information Commissioners Office 2013-2014 Second Quarter Report on 21 February 2014.

 
OAG Workplace Walk of Challenge 2014 Print E-mail

From 17 January - 7 February 2014 the Office of the Auditor General and the Information Commissoner's Office participated in a workplace walk off challenge.The full results can be viewed in the OAG's newsletter.

 

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