Info boss foils secrecy attempt

| 28/03/2011

(CNS): The information commissioner has found against another public body attempting to deny public access to information without genuine cause. In her ninth hearing under the FOI law Jennifer Dilbert has instructed the country’s health insurance board to release previously redacted parts of minutes of a meeting. A section of the minutes from a September CINICO board meeting had been labelled “private and confidential executive session” and the part was denied to the applicant while the rest were revealed, but the FOI boss found there was no lawful reason for any of the minutes to be withheld. In the hearing Dilbert once again found a number of procedural irregularities by the PA during the request process.

The board had claimed that under section 20(1)(b) of the FOI Law the disclosure of the information “would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation”, but Dilbert noted that for this section of the law to apply the document would have to contain evidence of free and frank discussion but she said the withheld paragraphs did not.

While the board had fought the FOI on the grounds that it must have the freedom and protection to determine the best course of action for the organisation without harmful interference, which could occur if certain information is made public, the applicant had questioned whether the board could have anything to discuss that would “override the general public interest in openness and transparency”.

Dilbert said in her ruling that she recognized the legitimate need, expressed in the FOI Law, for public authorities to “conduct candid and robust discussions, make hard choices, and conduct business in the secure knowledge that an exemption to disclosure is available where applicable”. However, quoting findings of the UK Information Commissioner in a similar case, she concluded that “for a record to have any prospect of protection under this exemption it is a prerequisite that the record must actually document a free and frank deliberation in the first place.”

She went on to point out that since the withheld “executive session” did not contain a “free and frank deliberation” such as different views, opinions, positions, arguments or recommendations of individual Board members”, but only consisted of general statements of fact and decisions, the exemption does not apply to it, and the record must be released.

While there will be times when a public authority may need to use section 20(1)(b) of the FOI Law to protect opinions and frank discussion, Dilbert noted in the report that public authorities are not at liberty to cordon off, a priori, a section of its activities or records, and post a “private and confidential” label on information in the name of protecting free and frank deliberation, effectively placing those activities or records beyond the reach of the law.

“I find that disclosure of the ‘Private and confidential Executive session’ part of the minutes of the CINICO Board meeting of 7 September 2010 would not inhibit the free and frank exchange of view for the purposes of deliberation, and that the exemption in section 20(1)(b) does not apply,” she revealed in the decision.

Deputy Information Commissioner Jan Liebaers emphasized that although the law provides a clear legal imperative towards openness, transparency and accountability for the sake of good governance not everything discussed by a board or other public authority will always need to be disclosed, but in this case the exemption does not apply.

As appears to be the case with many FOI requests, the information commissioner once again uncovered procedural weaknesses during the application process. In particular, the fact that the chief officer who would conduct an internal review was involved in the original refusal but the applicant was not informed until the Information Commissioner’s Office had been asked to hold a hearing — delaying and frustrating the requester’s access to the information.

In the first instance the information manger (IM) was the one who told the applicant they could not have access to all the minutes because of section 20 of the FOI law but the IM was acting under the instructions of CINICO’s board and its chair. According to the law this exemption is limited to the minister or chief officer concerned. When the applicant applied for an internal review the original involvement of the chief officer, who sits on the board, was not revealed until the ICO began examining the case then the procedural break downs were revealed.

Dilbert referred to another of her decisions where she had to address problems regarding the involvement of senior officials in refusals who then go on to unlawfully conduct internal reviews.

In her decision 7-01010 regarding a request by CNS to the Public Service Pension Board Dilbert had said: “It is critical that each public authority identify and designate the person who will conduct internal reviews in accordance with section 34(1) of the Law. In the interest of fairness and expediency, wherever possible, this should not be a floating responsibility that is transferred to another person if and when the designated person has already been involved in the original decision. Instead, in these circumstances applicants should be informed of their right to appeal directly to the Information Commissioner.”

She also noted that after the hearing was opened the PA raised two further exemptions in its submission, hypothetically stating that these “could” also apply. The commissioner pointed out, however, that there is no provision in the law allowing a public authority to raise potential exemptions in what she described as “a piecemeal manner, or in a hypothetical manner without any supporting evidence”, as was the case in this hearing.

“I do not encourage or condone the application of exemptions so late in the appeals process, since doing so would undermine the timeliness, credibility and fairness of the process, and would risk delaying the applicant’s fundamental right to access as established by the FOI Law,” Dilbert added.

Following the commissioner’s decision, the public authority now has 45 days to apply to the court for a judicial review otherwise it must release the minutes in full.

See the Information Commissioner’s full decision below.

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  1. Anonymous says:

    This is just a complete breath of the proverbial fresh air when it comes to Cayman bureaucracy.

    Maybe it’s time the RCIPS was subjected to the same treatment?

     

  2. Anonymous says:

    Ms. Dilbert should be honoured in the next round of gongs being given out.

    • Anonymous says:

      What about her staff? She doesn’t work alone…

      • Anon says:

        So true 10:54. You would think this is a one person show but it is not. In particular she has a very talented (expat) deputy.

    • Anon says:

      She already got an MBE for her work in the London office.

    • Anonymous says:

      Indeed! The FOI legislation is another of the largely unheralded achievements of the former administration. The PPM was not all bad after all.

      • Anonymous says:

        Yes, you are so correct.

        The UDP Government, with Premier Bush as the leader, is trying to do whatever he can to shutdown all “Good Governance” entities, including Freedom of Information, given time he will do it too.

        We have to fight for more openness in government, remove these restrictions to cover up harmful government practices, restore honest government.

        Thanks again PPM for Freedom of Information.

  3. Anon says:

    Well, because you cannot freely open up and say what you think with out it being used by anyone who want to make trouble, then boards should have more cocktail or dinner parties, and forget about who said what. Hell i dont want to be shot or maimed for what i may say because of my private opinion..i know of one right now who is doing just that. FOI can be abused to the max. If i am being discussed i dont want any and everyone having access to my private records..

  4. Anonymous says:

    very good. let’s hope she doesn’t go the way of Dan Duquay.get more requests in people!
    Let’s insist on transparency!

  5. McCarron McLaughlin says:

    Thank god for FOI. The board’s reasoning of “grounds that it must have the freedom and protection to determine the best course of action for the organisation without harmful interference, which could occur if certain information is made public” Isn’t this body and public body. What do they think? Was this a matter of national security? No, so let the people know who the information theyseek.

    Next time I recommend the board make “off the record remarks” if they don’t want these things to come to light.

  6. Shock and Awe says:

    It is so refreshing to see an official doing their job with care and diligence. The Information Commissioner’s Office is fair in it’s findings, and more than that complies with an attitude of putting the public interest first and foremost. The way that it should be. We hear lots of yada yada about it and a great deal of rhetoric but each time – Ms.Dilbert walks the talk. Thankyou for restoring our faith.

    • Anonymous says:

      My friend you are sooooooooooo right.

      Thanks Ms. Dilbert and all of your team too.

      May God continue to give you the fortitude to fight against the forces of evil that given their way would keep us all in a dark oppressive world without good information allowing us to discern between good and bad government.

      Ms. Dilbert you are opening our eyes to how much bad government has cost us.