Introduction to the Cayman Introduction to the Cayman Islands Islands

FOI Bill 2007FOI Bill 2007

Carole ExcellCarole Excell

FOI CoordinatorFOI Coordinator

Objectives of presentationObjectives of presentation

To describe the main features of the Freedom of To describe the main features of the Freedom of Information Bill 2007Information Bill 2007

We will look at:-We will look at:- Context Context Scope of the BillScope of the Bill Right to access recordsRight to access records Key FundamentalsKey Fundamentals AdministrationAdministration Exemptions and offencesExemptions and offences Internal Review and AppealsInternal Review and Appeals

Context Context

We are living in the information ageWe are living in the information age Never before has access to information Never before has access to information

been easierbeen easier Access to Government Information has Access to Government Information has

been traditionally very restricted. been traditionally very restricted.

Context Context

Freedom of information has been Freedom of information has been recognized for nearly 250 years. The recognized for nearly 250 years. The world’s first FOI law was Sweden's Freedom world’s first FOI law was Sweden's Freedom of the Press Act, approved in 1766. of the Press Act, approved in 1766.

In 1789, the French Declaration of the In 1789, the French Declaration of the Rights of Man called for the right of citizens Rights of Man called for the right of citizens to review expenditures of the government.to review expenditures of the government.

ContextContext

Approximately 70 countries now Approximately 70 countries now have guaranteed their citizens the have guaranteed their citizens the right to know. right to know.

In some countries the laws are In some countries the laws are dormant/ others actively used.dormant/ others actively used.

Secrecy has increased in some Secrecy has increased in some countries because of the war on countries because of the war on terrorism.terrorism.

BackgroundBackground

The Cayman Islands Freedom of The Cayman Islands Freedom of Information Bill, 2005, was tabled in the Information Bill, 2005, was tabled in the Legislative Assembly on 4 November Legislative Assembly on 4 November 2005.2005.

It balances the citizens right to know It balances the citizens right to know against government’s obligation to against government’s obligation to preserve confidentiality of certain preserve confidentiality of certain information contained within exemptions.information contained within exemptions.

Objects of the Law (s.4) -TAPObjects of the Law (s.4) -TAP

The objects of this Law are to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy,(a) transparency(b) accountability and(c) public participation in national decision-making,by granting to the public a general right of access to records held by public authorities

Who does the law apply to ?Who does the law apply to ?

The Bill speaks to the law being applicable to “Public authorities”

“Public Authority” is defined as : is defined as : government ministries, portfolios, statutory body or government ministries, portfolios, statutory body or

authorities whether or not incorporated, government authorities whether or not incorporated, government companies which the government owns a majority sharecompanies which the government owns a majority share

The Bill states that it may be extended by Order to:- government companies with a minority share or private

companies carrying out government services under a contract

Any body or organization that carry out services important to the welfare of the Caymanian Society

Organisations that receive government appropriations on a regular basis

Scope of the BillScope of the Bill A record is defined broadly to mean A record is defined broadly to mean

“information held in any form” (s.2) i.e. “information held in any form” (s.2) i.e. in its possession, custody or controlin its possession, custody or control

Applies to all records created by Applies to all records created by Government regardless of date of Government regardless of date of creation (s.3)creation (s.3)

Requires the pro-active publication of Requires the pro-active publication of prescribed information(s.3)prescribed information(s.3)

Any person can make a request, it is Any person can make a request, it is not limited to persons living in Caymannot limited to persons living in Cayman

Scope of the BillScope of the Bill

FOI Law does not amend other legislation that FOI Law does not amend other legislation that may have more restrictive provisions for accessmay have more restrictive provisions for access

Where access is already provided by another Where access is already provided by another means e.g. public register or is available for means e.g. public register or is available for purchase -no FOI request is to be made. purchase -no FOI request is to be made.

Protection of WhistleblowersProtection of Whistleblowers Requires public authorities to make “best efforts” Requires public authorities to make “best efforts”

to ensure decisions and the reasons for those to ensure decisions and the reasons for those decisions are made public.decisions are made public.

Scope of the BillScope of the Bill The Law wholly does not apply toThe Law wholly does not apply to Records held under the Monetary Authority Law Records held under the Monetary Authority Law

s.50s.50 Exempted Companies under the Company LawExempted Companies under the Company Law Judicial functions of a court or holder of a judicial Judicial functions of a court or holder of a judicial

office ( administrative records fall within the law)office ( administrative records fall within the law) Records relating to the strategic or intelligence Records relating to the strategic or intelligence

gathering information of the police and customsgathering information of the police and customs Records that belong to the Government of the Records that belong to the Government of the

UKUK Private holdings of the National Archive where Private holdings of the National Archive where

there is a contract or other arrangement that there is a contract or other arrangement that restricts accessrestricts access

What does the law provide to the What does the law provide to the public?public?

The Law will give members of the The Law will give members of the public a legal, enforceable right to:public a legal, enforceable right to:

  Inspect, copy or hear official records Inspect, copy or hear official records held by public authoritiesheld by public authorities

Ask for personal information held by Ask for personal information held by Government to be changed.Government to be changed.

Appeal against a decision to refuse to Appeal against a decision to refuse to grant access to a record, defer the grant access to a record, defer the grant, or where there is a failure to grant, or where there is a failure to grant timely access to the record.grant timely access to the record.

Key fundamentalsKey fundamentals A person does not have to give a reason for their requestA person does not have to give a reason for their request

The burden of proof is on the public authority to show why The burden of proof is on the public authority to show why the record is exempt not on the applicantthe record is exempt not on the applicant

Disclosure is the GENERAL RULE not the exceptionDisclosure is the GENERAL RULE not the exception

There is no requirement to state that a request for There is no requirement to state that a request for information is made under the FOI lawinformation is made under the FOI law

A public interest test must be applied in prescribed A public interest test must be applied in prescribed circumstancescircumstances

All persons have equal right of accessAll persons have equal right of access

FOI does not require the creation of a document although FOI does not require the creation of a document although may require the collation of informationmay require the collation of information

Information ManagersInformation ManagersThe provisions of the law are The provisions of the law are

implemented through the implemented through the designation of an “information designation of an “information manager” in each public authoritymanager” in each public authority ““information managers” under s. 49 information managers” under s. 49

are required to : are required to : Promote in each public authority best Promote in each public authority best

practices in relation to record practices in relation to record maintenance, archiving and disposalmaintenance, archiving and disposal

Receive requests for records, assists Receive requests for records, assists individuals seeking access and individuals seeking access and receive complaints about the receive complaints about the performance of public authorities performance of public authorities

Publication SchemesPublication Schemes

The Chief Secretary is required to publish : The Chief Secretary is required to publish : (1) a code on minimum standards and best practices (1) a code on minimum standards and best practices regarding publishing information (s.51) regarding publishing information (s.51)

All public authorities will be required to All public authorities will be required to publishpublish extensive information about themselves in the extensive information about themselves in the Official Official Gazette (s.3 & the Schedule to the Law)Gazette (s.3 & the Schedule to the Law). . 

This information should include details on anything This information should include details on anything administered by the agency. This includes administered by the agency. This includes interpretations, rules, guidelines, practices or interpretations, rules, guidelines, practices or precedents used; published information must be made precedents used; published information must be made available to the publicavailable to the public for inspection or purchase. for inspection or purchase.

Code of Practice – Records Code of Practice – Records ManagementManagement

The Chief Secretary is required after consultation The Chief Secretary is required after consultation with the Director of the National Archives to issue a with the Director of the National Archives to issue a code of practices relating to the keeping and code of practices relating to the keeping and disposal of records and transfer to the Archives disposal of records and transfer to the Archives (s.51)(s.51)

Right of accessRight of access

Anyone can apply for access to information by Anyone can apply for access to information by writing, email or fax but not via telephone.writing, email or fax but not via telephone.

FOI Regulations will define the Fees to be FOI Regulations will define the Fees to be charged – no application fee, waivers will be charged – no application fee, waivers will be consideredconsidered

Information Manager will be required to assist Information Manager will be required to assist the applicantthe applicant

TimelinesTimelines

Mandated timely response:Mandated timely response: A decision must be given on A decision must be given on

each request not later than 30 each request not later than 30 calendar dayscalendar days after receipt. after receipt.

Agencies may extend this period Agencies may extend this period once for another 30 days only in once for another 30 days only in instances of “reasonable” cause.instances of “reasonable” cause.

If a request has to be transferred If a request has to be transferred to another agency, this must be to another agency, this must be completed as soon as practicable completed as soon as practicable but no more than 14 daysbut no more than 14 days

Transfers (s.8)Transfers (s.8)

If an application is made to a public authority If an application is made to a public authority but the but the

(a) record is held by another public authority or(a) record is held by another public authority or (b) the subject matter is more closely connected (b) the subject matter is more closely connected

to the functions of another public authority- the to the functions of another public authority- the application may be transferredapplication may be transferred

It must be done as soon as practicable but no It must be done as soon as practicable but no later than 14 dayslater than 14 days

Grant or refusalGrant or refusal

Public authorities may:Public authorities may: (1) Grant Access(1) Grant Access (2) Extend the time for response(2) Extend the time for response (3) Refuse Access(3) Refuse Access (4) Defer access to a record(4) Defer access to a record BUTBUT They must give a reason for the decision if they They must give a reason for the decision if they

defer, extend or refuse access and inform the defer, extend or refuse access and inform the applicant of the right of internal review or appealapplicant of the right of internal review or appeal

They can grant partial access to part of a They can grant partial access to part of a document and sever the exempt part (s.12)document and sever the exempt part (s.12)

ExemptionsExemptions

A refusal must be based on an exemption A refusal must be based on an exemption Exempted documents will generally become Exempted documents will generally become

available after 20 years, but Cabinet could also available after 20 years, but Cabinet could also extend or shorten this period. s.6 (2)extend or shorten this period. s.6 (2)

The exemption for release of information that The exemption for release of information that amounts to an unreasonable disclosure of amounts to an unreasonable disclosure of personal information is without limitation of timepersonal information is without limitation of time

The exemption for disclosure of information The exemption for disclosure of information which could result in damage or destruction of which could result in damage or destruction of historical, archaeological or anthropological historical, archaeological or anthropological resources is 75 years resources is 75 years

A certificate of exemption may be issued for A certificate of exemption may be issued for some exemptions which makes the decision some exemptions which makes the decision outside of the review of the ICoutside of the review of the IC

ExemptionsExemptions

There are 11 Sections on exemptions they are under part There are 11 Sections on exemptions they are under part III of the law and one in s. 9 of the lawIII of the law and one in s. 9 of the law

They may be listed in the following categoriesThey may be listed in the following categories Security, defence and international relationsSecurity, defence and international relations EnforcementEnforcement Legal privilege, breach of confidence and privileges of parliamentLegal privilege, breach of confidence and privileges of parliament National economyNational economy Deliberative process of CabinetDeliberative process of Cabinet Deliberative advice relating to public affairs*Deliberative advice relating to public affairs* Commercial interestsCommercial interests Heritage sites and endangered speciesHeritage sites and endangered species Personal informationPersonal information Health and safetyHealth and safety Vexatious requests/ diversion of public resourcesVexatious requests/ diversion of public resources* Decision made by Minister or Chief Officer * Decision made by Minister or Chief Officer

ExemptionsExemptions

Most of the exemptions are not “Absolute Exemptions”.Most of the exemptions are not “Absolute Exemptions”. Seven (7) of the exemptions in the Law are subject to a Seven (7) of the exemptions in the Law are subject to a

public interest test (s.26).public interest test (s.26). Most of the exemptions require a standard to be Most of the exemptions require a standard to be

assessed i.e. they require the assessment of assessed i.e. they require the assessment of “reasonableness” or “prejudice”“reasonableness” or “prejudice”

E.g. records relating to law enforcement are exempt E.g. records relating to law enforcement are exempt from disclosure if their disclosure from disclosure if their disclosure would or could would or could reasonably be expected to endangerreasonably be expected to endanger any persons life any persons life or safety ORor safety OR

the disclosure would the disclosure would prejudiceprejudice the security ,defence the security ,defence or international relationsor international relations

Public Interest testPublic Interest test The public interest test provides that even if a record is The public interest test provides that even if a record is

exempt but on balance the factors favoring disclosure and exempt but on balance the factors favoring disclosure and non-disclosure are equal it may be released if it is in the non-disclosure are equal it may be released if it is in the public interest. (s.6 (5) & s. 26). public interest. (s.6 (5) & s. 26).

The public authority has to balance the harm that may be The public authority has to balance the harm that may be caused if the record is disclosed, to the public interest in caused if the record is disclosed, to the public interest in disclosure disclosure

The term “Public interest” is not defined in the law but may The term “Public interest” is not defined in the law but may include information which would:include information which would:

promote public debate of important issues or informationpromote public debate of important issues or information address accountability in government, address accountability in government, Address public safety concerns Address public safety concerns have a wide public impact. have a wide public impact.

Internal Review (s. 33)Internal Review (s. 33)

An internal review of any decision to An internal review of any decision to refuse access, defer or grant partial refuse access, defer or grant partial access, or charge an unlawful fee may be access, or charge an unlawful fee may be conducted by the responsible Minister or conducted by the responsible Minister or the Principal/ Chief officer the Principal/ Chief officer

The review and subsequent decision must The review and subsequent decision must be made within 30 days of the application be made within 30 days of the application for a review. for a review.

AppealsAppeals

Appeals may be made after Internal review Appeals may be made after Internal review to an Information Commissioner whoto an Information Commissioner who

May hear, investigate and rule on appealsMay hear, investigate and rule on appeals Monitor and report on complianceMonitor and report on compliance Make recommendations to specific public Make recommendations to specific public

authoritiesauthorities Refer criminal cases for prosecutionRefer criminal cases for prosecution Publicize the requirements of the law and Publicize the requirements of the law and

the publics rightthe publics right

AppealAppeal A person may appeal on the basis that :A person may appeal on the basis that : An agency gave no response, or failed to An agency gave no response, or failed to

make a decisionmake a decision Failed to communicate information within Failed to communicate information within

timelinestimelines Refused a request on the wrong basisRefused a request on the wrong basis Failed to comply with an obligation under Failed to comply with an obligation under

the lawthe law Obligations of agencies are wide e.g. Obligations of agencies are wide e.g.

transfers, publication schemestransfers, publication schemes

Powers of the CommissionerPowers of the Commissioner

Make any decision that could be made on the original Make any decision that could be made on the original application; Refer matters to a disciplinary authorityapplication; Refer matters to a disciplinary authority

Orders :- publishing of information, change in practices of Orders :- publishing of information, change in practices of record-keeping, provision of training, disciplinary authorityrecord-keeping, provision of training, disciplinary authority

In coming to decision may- compel witnesses or In coming to decision may- compel witnesses or production of evidence, inspect recordsproduction of evidence, inspect records

His/ Her decision is subject to judicial review by the CourtsHis/ Her decision is subject to judicial review by the Courts

The Commissioner may refer a matter to the court to find The Commissioner may refer a matter to the court to find that a public authority has acted in contempt of court if that a public authority has acted in contempt of court if his/her decision has not been followedhis/her decision has not been followed

Offences (s. 55)Offences (s. 55)

A person commits an offence if in relation A person commits an offence if in relation to a record for which there is a right of to a record for which there is a right of accessaccess

(a) Alters or deface (a) Alters or deface (b) Blocks or erases(b) Blocks or erases (c) Destroys or conceals the records with (c) Destroys or conceals the records with

the intention of preventing its disclosurethe intention of preventing its disclosure Liable to summary conviction of $100,000 Liable to summary conviction of $100,000

or 6 monthsor 6 months