FOI commissioner favours mediation

(CNS):  Cayman’s Information Commissioner has issued a set of policies and procedures on how she intends to be guided in exercising her duties and authorities under the Freedom of Information Law. Jennifer Dilbert said her overriding policy will be to seek mediated resolutions to appeals without having to resolve matters through a formal hearing, as she said both parties maintain more control over the outcome and it is more efficient.

“I hope, through these policies and procedures to provide, for all Cayman, certainty, transparency and efficiency in the dispute resolution and appeal processes,” she stated. “I intend to actively seek mediated resolutions as part of the process.” She said mediation would take into consideration the fact that the learning curve for public authorities about their new responsibilities is steep, and the understanding of the public will take some time to mature.

In the policies and procedures Dilbert explains the grounds for appeal, which includes the failure within the 30 day period of offices to indicate whether or not it holds a record, to communicate the information contained in a record, respond to a request for a record, to provide a notice in writing of its response, or otherwise failed to comply with an obligation imposed under this Law. Applicants can also appeal if a government office charges a fee that is in contravention of the law.

Dilbert explained that the information commissioner may direct staff from the ICO to investigate an appeal and attempt, through mediation, to assist the parties to settle the dispute, but she noted that not allfiles would be appropriate for referral to mediation. The mediation process is separate from a subsequent formal hearing by the information commissioner.  All information provided by the parties during mediation is treated on a “without prejudice” basis, which means each party can engage in free and frank discussions without fearing damage  to  their case should the matter proceed further.  The details of the mediation discussions will not be shared with the information commissioner to ensure that, if the matter proceeds to a formal inquiry, the commissioner remains impartial.  Where an appeal is not settled, the applicant may request the matter proceed to a formal hearing before the commissioner under section 43 of the Law.

The commissioner is responsible for monitoring and enforcing compliance with the Freedom of Information Law by over eighty public authorities.  That law gives the public the right to request records in the custody or control of a public authority, and requires that authority to provide the record within 30 days, unless one of the limited exceptions to disclosure applies.  Individuals who are dissatisfied with the response of the public authority to their request may file an appeal with the information commissioner.

The public is invited to submit any comments on the interim guidelines to the Information Commissioner’s Office at the address below by the end of March 2009. For more information contact Jennifer Dilbert, Information Commissioner for the Cayman Islands, Information Commissioner’s Office, 1st Floor, Cayman Corporate Centre, 27 Hospital Road  PO Box 10727, Grand Cayman KY1-1007, CAYMAN ISLANDS,  Telephone: +1 345 244 3619    email: appeals@ico.gov.ky