FOI being denied, warns ICO

| 11/05/2010

Cayman Islands News, Grand Cayman Island headline news, Cayman Islands Freedom of Information(CNS): The information commissioner has raised concerns that government departments are merely paying lip-service to the idea of freedom of information but have not embraced the culture. Feedback to the office suggests the public is been denied access to records requested under the law and Jennifer Dilbert says there are genuine concerns that the public is being misinformed by public officials who are not following the proper procedures. Requests for people’s identity, incidents of intimidation and unfounded refusals have all been reported to her office.

As a result Dilbert is making an appeal to people to report their experiences to her office so that the ICO team can address the problems.

Despite some encouraging statistics and improvements, Commissioner Dilbert said she is still concerned with the negative feedback the office has received from members of the public where the doors to information have essentially been closed. The ICO said she has identified weaknesses in the FOI process. “What is concerning are the number of people who share with us their negative experiences,” Dilbert said.  “People are being told that the records they seek are not covered by FOI, or they are simply being informed that the information does not exist.”
 
As a result Dilbert says she is keen to press upon the public that her office can help and is asking people to bring their concerns to the office to improve their FOI experience. She explained that there are set procedures by which requests must be dealt with, which include logging the request and sending the applicant a formal response letter, people cannot be denied an FOI request over the phone and should be sent a formal letter setting out why  the request has been denied under the law.
 
“The public needs to know that if they are not satisfied with the response they receive to their request, they can contact my office,” the IC added, stating that her staff was there to help not just in the most complex legal cases but where people had been treated unfairly or intimidated.
 
The IC said government officials should not be asking applicants for their real names if FOI requesters don’t wish to give them as they are entitled to make requests under a pseudonym. Nor should they be asking people why they are making a request or what they will use the information for.
 
Dilbert stated that if people had experienced this and had not informed her officer already she would like to hear from applicants. While there are some genuine reasons why a request can be refused, all applicants have the right to appeal and in some cases the office can mediate the appeal without starting a formal hearing.
 
Dilbert said she had concerns that people who are not appealing decisions may not be aware of their right to do so.  “I am always open to feedback from the public, but if they do not follow through with their request, they are not able to benefit from the rights afforded to them under the law.” 
 
Ironically, the information commissioner herself says her office is alsoencountering resistance from some public authorities to provide her office with copies of the information it needs concerning records in dispute, and under appeal. The ICO has adopted a policy, which is used worldwide by other information commissioners, in which they first attempt to resolve the situation through a mediation process.
 
“This process allows the ICO to investigate the issues, review the request, and work to settle the matter amicably with all parties” says Cory Martinson, Appeals & Policy Analyst at the ICO. “During this phase we normally require that copies of the records in question be forwarded to us so that we can determine if exemptions have been correctly applied in accordance with the law”. 
 
The FOI Law states that the Information Commissioner may examine any record to which the law applies, but this point has already been contested and challenged by two public authorities.
 
In February 2010, the commissioner made her first formal order for the production of a record from the Cabinet Office, which was then complied with and the records were produced. More recently, however, the commissioner faced resistance from an agency who did not feel that they needed to provide the ICO with the records at issue.
 
The commissioner revealed that the agency sought the guidance of a private lawyer, at what must be a considerable expense, to represent them in an appeal that is only in the earliest stages of mediation.
 
“The role of the ICO is to work with all parties,” Dilbert said “We do not look at the situation in an adversarial way against the government, but in order to do our job my team must be able to see the record and know what we are dealing with.”
 
Parties to mediation are assured that records collected during the process will not be released by the ICO and will be kept in a confidential and secure manner. The solutions suggested in mediation do not set precedence, and details are not shared with the information commissioner, so that there is no suggestion of bias before a potential hearing.  Any party may opt to discontinue mediation at any time and proceed to a formal hearing before the commissioner, a process which is set out in a user-friendly way. However, as mediation can often resolve appeals quickly, effectively and with less cost, the ICO encourages all parties to participate.
 
Freedom of information legislation is intended to promote transparency and government accountability. Since the FOI Law was enacted in the Cayman Islands in January 2009, over 1000 requests have been received from applicants seeking access to records but less than half have been granted.
 
The main role of the Information Commissioner’s Office (ICO) is to hear appeals when access to information has been denied and monitoring government’s overall compliance with the law in order to do the latter Dilbert says she needs to hear from the public exactly what their FOI experiences have been. For more information on the ICO or to ask for assistance regarding a refused or delayed request call 747-5405 or visit www.INFOCOMM.ky
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Comments (34)

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  1. Anonymous says:

    Surprise surprise…..the UDP is back in power and they have made it clear that we shouldn’t have implemented FOI……so clearly there is no longer any "new culture" of openness and transparency……mere lip service as happens before with the UDP. But thats what the people voted for !!!

    Now swallow it……3 yrs to go !!!!!!

  2. Ron Kipp says:

    Several months ago I submitted a FOI request to review my Immigration file. Within one month I was advised by Email that my request was approved. An appointment was made and I reviewed the file. Only one document in the file was of interest to me and I requested a copy. It was provided. In my case, the system worked perfectly.

    Ron Kipp

    • Anonymous says:

      Was the document of interest a complaint against you? If so, what steps did you take next?

  3. Macman says:

    If I write to the ICO requesting information about those civil servants or departments who refuse to give information requested under the FOI will I be entitled to obtain that information under the FOI…..interesting thought

  4. Raffaele says:

    The same old game being played some folks really didn’t get it For those of you who seem to think this was just about Mr Dugay the person, you were kidding yourself. What he represented was a principal that has been stifled for many years by those in power, it is a means by which this place has been controlled by the sinister elements who run this place for many many years. This secretive menace makes bad people and destroys the good in our little society.  Transparency was always a far stretch and even our benevolent governing power too believes certain truths must be with held for the greater good apparently Transparency is reserve only for the powerful and wealthy in society.

  5. Anonymous says:

    Why are people so quick to give credit to the UK?  The FOI law was the brainchild of Mr. Roy Bodden and the Hon. Kurt Tibbetts along with other associated members.  Please review the government circular of 2005 which states,”

    Mr Speaker and Members of the Legislative Assembly, I wish to lay before this Honourable House the Freedom of Information Bill, 2005, as a discussion paper for public consultation.  Mr Speaker, the most logical point to begin in this matter has to be the debate we had in this House in 1998, seven years ago now. In that year, as a Member of the Opposition, I seconded a motion moved by the Hon. Roy Bodden, then a Member of this House and the previous Education Minister. That motion was aimed at urging Government to enact a freedom of information/official information act. The Government of the day, supported the motion and I thanked them on that occasion for that laudable decision.
     
    Mr. Tibbett’s response is noted within the Hansard, 1 July 1998 Column 1.
    While I personally do not support any party, accreditation should be given to our local politicians when they enact measures, which benefit our society.
    That’s my 2 cents
    • Dennie Warren Jr. says:

      Because Caymanians have been brainwashed by their colonial master and have yet to understand the bitter realities of colonialism.

      • Anonymous says:

        Who was brain washed? You maybe, although not by these unknown ‘colonial masters". Grow up.

  6. budget cutbacks? says:

     When it comes to Immigration, what kind of FOI gives 30 days for a response?  Pul-ease?!?  

    We already know that documents go "missing" and the paper shredder is the only working thing at the CI Immigration Department.  

    For TRUE transparency and freedom of information, there should be (1) employee, one customer window, and with the act of showing your passport, you should immediately get to see your file (UNALTERED).

    Okay, limit the file review to a five minute time limit, take your photos and notes on your file and move onto next person.  This should service 50 people a day in a fair and unbiased manner.

  7. kaboom says:

    What does Cayman expect do we honestly expect transparency considering what has happen to the Auditor General like what one poster posted Dark clouds looming over these islands.No surprise here Cayman you have sat by and let them get away with.

  8. Anonymous says:

    Thumbs up to you Mrs. Dilbert!  Keep up the diligent work and commitment to the FOI Law.

    You are doing a great job!

  9. Anonymous says:

    it is for the very same reason why you dont want your name to appear in here…

    long way to do indeed

  10. Anonymous says:

    This is par for the course for this country.  Introduce a FOI act that looks good to the outside world, then just pay lip service to it.  No training for the CSs who should understand the act and how to adminstrate it; who fail to provide the pulic with the information they are entiled to by law, and who get all puffed-up because they have some kind of power over providing the information — or not in more than 50% of the cases. 

    The FOI act in Cayman simply promotes the illusion of transparency and government accountability.

    Banana anyone?

  11. John Evans says:

    Ms Dilbert’s office isn’t exactly helping the situation.

    In September last year I filed an FOI request with the RCIPS. I want the minutes (or extracts thereof) from the SOG meeting that decided not to refund nearly £5000 in expenses incurred while I was ‘retained’ on Grand Cayman for three months by Operation Tempura. To be blunt I do not believe the meeting, which was cited as the basis for the refusal, ever took place and this request was designed to prove that theory.

    In January I conplained to the ICO about the lack of response but the reply simply referred the matter back to me with a stock explanation and cc’d the email to the RCIPS Information Officer who simply ignored it.

    I contacted the member staff concerned at the ICO again, raising a number of questions, but my email has never even been acknowledged.

    I don’t see how Ms Dilbert can criticise other government departments when her own staff act in this way.

    Response from ICO:

    In his online comments Mr. Evans intimated that the Information Commissioner’s office did not properly respond to his complaints about RCIPS or respond to an email query by him. This office has explicit policies and procedures on how to deal with situations such as the one that Mr. Evans says has taken place and while in some cases we must refer people back to the public authority so that an Internal Review may be conducted it is unlikely that further email queries from him would have been ignored. This office has no record of ever dealing with such a person. I would question why Mr. Evans did not make further attempts to contact this office if the issues were so important him. I would invite Mr. Evans to approach this office again with any records pertaining to his situation so that I can investigate what took place and assist him with his original FOI request if at all possible.

    Sincerely,

    Cory Martinson, Appeals and Policy Analyst, Information Commissioner’s Office

  12. Jenna Jameson says:

    Can someone please clarify what this commissioner does to be making over 130,000 bucks a year? And the civil service wonders why it’s broke . . .

     

    http://www.infocomm.ky/pubdocs/file/Salary%20Scale.pdf

     

    • Anonymous says:

      actually, the civil service knows why they’re broke. Its the politicians who create these posts that wonder why the civil service is broke.

      • Anonymous says:

        it wasn’t a politician that demanded such a high salary, maybe you should ask ms. dilbert why she feels she has to be paid far above the intended salary for the post, particularly in such tumultuous economic conditions.

  13. islandman says:

    Here is another great example of how we benefit as being a part of the UK/EU. Certainly FOI has not been and would not be anywhere on the list of priorities of either local political party.

    And no!…i’m not from somewhere else. I’m a Caymanian who embraces true transparency and true accountability. True democracy needs no less!

  14. Anonymous says:

    Cayman, notice the difference an election makes.

    Welcome to the world and politics of McChavez.

    This is the result of your vote, so live with your irresponsibility at the polls. 

  15. Anonymous says:

    This country has a major problem – We Caymanians live in a total Denial zone. Its just a lack of confidence in us. Just cant cut it.

  16. Anonymous says:

    Kudos to Mrs. Dilbert

    Good for you Mrs. Dilbert. As a compassionate person, this must be frustrating, yet as a professional you must be compelled to see these cases to the bitter(?) end (s).

  17. Anonymous says:

    Dear Ms. Dilbert,

    Why is it the only person NOT allowed to see his/her Immigration file is the person who’s file it is? 

    Why is it others are allowed to call in favors and ask what is in a person’s file? (I witnessed this may times over the recent years.)

    Why is it people are allowed to write in letters against people, and these letters are taken as gospel? Wouldn’t it be fairer (natural justice) if complainers had to swear affidavits in front of a notary or justice of the peace? Why is it the letter writer is protected by FOI, but not the person the letter is written against?

    Are the answers as simple as a person can write all the lies they want, claim that if the letter gets into the victim’s hands, the author can be fired? I’ve seen the xenophobic boards readily fall for this one. Whether there is any truth to the letter, or claim of being fired, is irrelevant because Immigrations job one is to protect Caymanians, even dishonest ones? 

    Immigration would go a long way if it and its boards adhered to the principals of integrity, law, and human decency. After all, aren’t these the principals of true Caymanians?

    And to those who think I’m a disgruntled foreigner, you should know I’m a Caymanian who is increasingly ashamed of the corruption I see in my own Country. We are supposed to be honest, hard working, Christian people. 

    Sincerely,

    Not Remotely Surprised With the Article

     

    • Anonymous says:

      To 20:27 I can only say thank you.

      The description of the system that you describe is used to keep the foreign workers in an indentured servant status within the country. It keeps injustice secure and allows personal bias to remain unchallenged.

    • Anonymous says:

      To 20:27,

      I think you are a bit misinformed as FOI does indeed allow a person to see his/her own Immigration file.

      Make a request to review it and the more than competent Information Manager will give you access to your own file.

      If Immigration has acted against anyone on the basis of a complaint letter, they have a duty (in accordance with natural justice and administrative fairness) to inform you of the complaint and allow you the opportunity to defend yourself if neccessary.  If they don’t make a complaint to the Complaints Commissioner who oversees administrative fairness in Government.

      • Anonymous says:

        It is interesting that you are telling the person he is misinformed. And perhaps, according to the law you are right. However, having actually tested the system a person can only see the complaint letters on his file IF the person who wrote the letter of complaint gives him permission to do so.  Therefore, the letter writer is protected and not the victim. 

        I also agree that a person is to be informed of a complaint. But, again, having actually tested the system, this is simply not true. 

        So let see, a Board acts wrongfully and doesn’t give a person the chance to respond to a complaint against him. You are suggesting the person go to the Complaints Commissioner. When the Complaints Commissioner sides the the person against the Board and tells the Board to review the case, what is the Board likely to do? a) Admit their error, b) Defer, c) Lose the File, d) Trump up new reasons for a denial?

        I will concede the FOI law is essential. However, it is simply ineffective against institutionalized corruption.

        • Anonymous says:

          Did you appeal Immigration’s decision to withhold information from you to the Information Commissioner’s Office? If not, you only used half the system and have no reason to complain or say it was ineffective.

          • Anonymous says:

            XXXX  I’d sincerely appreciate that the people, who defend the system, stop assuming people haven’t tested it. When I say justice can’t be found, it is not because I don’t love Cayman. It is because there is a minority of haters, who are in positions of authority, and they disregard the laws knowing full well it is near impossible to be held accountable.  

      • Anonymous says:

        Misinformed? You have to be kidding. Here is a case for you. When the FOI was asked to see a file which a person suspected had complaints on it this is what the person was told.

        "I have pulled your file and initial review reveals that the records you have requested contain personal information relation to one (or more) third parties. I am required to notify the third party that has request has been made for the information that relates to them. The third party has 28 calendar days to comment on the application for disclosure of their personal information. A decision on whether or not to release the information will be made within 14 days of the expiry of the 28 days, or within 14 days of receiving a response from the Third Party, whichever is soonest. "

        So who is protected here? How does one defend himself? Natural Justice – no such thing in Cayman.

        • Anonymous says:

          Your employee who saw you snort cocaine in the office  and proposition the 17 year old intern and determined that this country was probably betteroff without you needs protecting too. Just showing you the letter will get them fired. That is why the procedure needs to work this way, and you seeing the letter anyway is only relevant in the event anyone ever considers it. If it is ignored there is little basis for you to see it.

          • Anonymous says:

            What happens when a Caymanian fabricates the cocaine snorting and 17 year old proposition and the letter is taken into account?  

            • Anonymous says:

              Then you produce the intern who will confirm you made no advances, and provide a urine sample for drug testing, and when both indicate that the complaint was false/malicious you sue the author, and fire them, and ask immigration to charge them with making a false statement to the authorities.

        • Anonymous says:

          Misinformed – you have to actually fight for natural justice.  It will not simply fall into your lap because you complain about it on CNS.

          In the example you give –  Yes, personal information of a third party might form part of an immigration record you request.  And – Yes, personal information should be protected.   Would you be comfortable if a member of the general public were able to simply request and view your own personal information without you having a say in the matter?  

          Legitimate complainants MAY need to have their identities protected, i.e. the Police need to be able to protect the identity of informants or they may never receive informationcritical to prosecuting their case. 

          That notwithstanding, you have the right to appeal the decision of immigration if they deny you access to a record you request. 

          You ask how does one defend himself?  Stop bitching and start doing.

          And if you think that my comments are out of touch, you are wrong.  I myself did have a complaint made against me to the immigration department.  The complaint was completely untrue and after I defended my position the complaint was disregarded by immigration.  This is an example of administrative fairness.  Am I so naive to think that the system always works – certainly not.  However, if you don’t follow through you will never know.  

  18. Anonymous says:

    It is understandable given the history of secrecy in this country that there would be difficulty in getting a change in the freedom of information culture.

    What is critical for the success of FOI is to not accept roadblocks put up by reluctant civil servants who want to protect their turf.

  19. Anonymous says:

    The FOI office should name and shame the civil servants who are so arrogant as to obstruct access to information to the people they serve.