FOI boss backs Duguay

| 24/08/2009

(CNS): In the wake of concerns raised by auditor general regarding government confidentiality clauses in contracts using public money and possible moves by the Public Accounts Committee to delay the public exposure of his office’s reports, Information Commissioner Jennifer Dilbert has offered her support to Dan Duguay and is urging the government to publish the auditor general’s reports in a timely fashion and to minimize the use of confidentiality clauses to shield contracts from the public.

“The government, both past and present, has stated its commitment to Freedom of Information in the Cayman Islands,” Dilbert said on Monday, 24 August. “However, several serious issues that impact timely and full openness have been raised by the auditor general I feel compelled to address, specifically, contractual relationships between government and the private sector; and the publishing of government reports.”

She said that the auditor general had recently raised concerns about the seeming overuse of confidentiality clauses in government contracts.  “The FOI Law clearly changes the nature of contractual relationships between government and private contractors,” the Information Commissioner noted.  “There must now be an expectation, in line with the experience of other countries with similar FOI laws, that information contained within such contracts may be open to public scrutiny, irrespective of any confidentiality clause.  This would not prejudice the private contractor’s position, however, since the contract will be subject to exemptions to disclosure contained in the Law that will protect a private company’s sensitive commercial information.”

Dilbert said that public authorities should avoid broad confidentiality clauses when negotiating new contracts. “This should have the positive effect of reducing the potential number of FOI appeals being escalated to a formal Hearing before the Commissioner, saving both time and money for all concerned,” she added.

While the commissioner acknowledged the authority of the Legislative Assembly to set its own rules for disclosing the auditor general’s reports, she noted how important publishing them at the earliest possible date would be to public confidence in government.

“The publishing of reports, in a timely manner, will be a determining factor in establishing whether or not government is truly committed to two guiding principles of freedom of information – transparency and accountability.”

Although PAC chair Ezzard Miller has refused to go on the record regarding future plans for Duguay’s reports,recent comments by PAC member Ellio Solomon to The Caymanian Compass indicated that the committee wanted to control the release of the reports and not just ‘dump’ them on the public.

Miller told CNS that the PAC  had agreed that they would not speak to the press about issues which were still under discussion at PAC and that a joint statement about the future process on releasing reports would be made once the committee had reached a decision on which it was agreed. It is understood, however, that the proposals will be presented to the LA this week about what will happenin future to the AG’s reports and the process of public disclosure.

Dilbert recently made her first ruling regarding a disputed FOI request and ordered further disclosure of government salary information as she said it was in the public interest. She said that she is hopeful that government will meet these and other new challenges that inevitably present as more access requests are filed under the FOI Law.  “The Cayman Islands as a whole can only benefit from such willingness of government to account to its people for what it does in their name,” Dilbert added.

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  1. Anonymous says:

    I am thankful for institutions like the Auditor General and the Information Commissioner.  Transparency and openness are tough political pills to swallow, but someone has adminster the medicine, in the interests of a healthy democracy.

    What is the point of having an Auditor General if his reports on the value for dollare only become public years later at the whim of the politicians? 

    Accountability should be a real time event, not some vague hazy, dated proposition.

  2. Makam says:

    A little knowledge is a dangerous thing! as

    you have just proved.

    • Makam says:

      This posting was in reply to Caymanians for transparency. Unfortunately it appears to be in reply to the article. My fault or yours CNS?

      CNS: Not me!

    • Anonymous says:

      Given that the AG clearly likes to use exciting and oftentimes misleading language in his reports, it is best – as Ellio has quite rightly suggested – that the PAC allow persons concerned in those reports to be heard prior to making them available to the Press.

      If any decent person has the misfortune to be named in one of these – sometime tabloid like – AG reports I am sure that they would like the opportunity to be heard by the PAC before the documents were released.

  3. Dan Duguay Auditor General says:

    I usually do not post to this fine website as I don’t want to stifle the excellent discussions that I see here. However, when things are stated incorrectly, I feel that I need to make clear the facts.

    I won’t comment on the writer’s comments regarding my opinion. I clearly don’t agree but believe that he or she is certainly entitled to their opinion. However, I believe that the poster has made an incorrect conclusion based on selective quoting of the Standing Orders of the Legislative Assembly

    The poster at 20:23 on Monday stated that I had violated the Standing Orders of the Legislative Assembly. This Office has ALWAYS followed the law and the Standing Orders exactly as they are written. We have never broken the Law nor the Standing Orders nor will we so long as I am the head of this fine organization.

    The poster has correctly quoted Section 77 (5) of the Standing Orders but has neglected to state Section 77 (3) of the Standing Orders that reads as follows:

    "77(3) Upon its receipt by the Speaker, a report mentioned in paragraph (1) shall be deemed to have beed referred by the House to the Public Accounts Committee for consideration and shall fortwith be distributed to all Members and shall become a public document."

    Section 77(3) was amended by Private Member’s Motion No. 2/05-06 and was gazetted in Issue 09/2006 on May 1, 2006.

    Before this amendment, AG reports were not public documents until AFTER the PAC had prepared its own report and laid both documents before the Legislative Assembly. The Standing Orders were changed after substantial debate in the PAC. The goal was that Auditor General reports would become public documents as soon as they were submitted to the Legislative Assembly.

    The effect of thetwo Standing Orders is that currently AG reports become public documents a few days after they have been submitted to the Speaker. This has been the practice since May 2006 and continues today.

    So to the writer of the comment, I DO follow the Standing Orders.

    One final point. The writer states that the way the process is supposed to work under the Westminister system is that AG reports only become public AFTER the PAC issues its report. This is not accurate. I have done research in this matter including discussing the issue with the National Audit Office (NAO) of the UK, Canada and Bermuda. In all three countries,  the AG reports becme public documents when tabled and a PAC report is submitted at some later point. Although it is true that a PAC report is part of the Westminister process, an Auditor General’s report beome public when it is submitted to the Parliament. The NAO knew of NO country that defers making AG reports public until when the PAC reports. So if the PAC wishes to go back to the past system, it will be virtually alone in this approach.

    Thank you for allowing me to respond. I look forward to the ongoing debate.

    • Makam says:

      What a very refreshing, accurate and erudite posting. As usual Mr. Duguay has reported the FACTS and I for one am grateful for his honest and forthright attitude. He has been and will remain a check in the scheme of "Checks and Balances" on the past and present government.


      Well done sir!

  4. Anonymous says:


    This is the Age of Aquarius, the age of Westminster is passed and this is true even in the UK. The working of government in the UK is changing every day towards participation, openness; the people are challenging the sovereignty of Parliament every day and taking it back for the people inch by inch, which is the only legitimate place for sovereignty to reside.
    Aquarius "rules" democracy, freedom, knowledge, idealists, modernization, rebels and rebellion, we rebel against secrecy, institutionalized corruption and poor governance.
    The autonomy of the Auditor General must be maintained and not fettered by the always politically biased Public Accounts Committee which operates at its own pace, largely by its own rules and as we have see in the PPM government did not really operate at all and without consequence! All work of the PAC must be public, all work of the Auditor General Department must be public, it is our money. Trust Government, No way.
    PAC we want to hear directly from theAuditor General Department, do not push democracy back by keeping the reports secret, held at the whim of the PAC to release them if they feel to do so. NO way.
    At the same time credit to the current PAC for actually working to examine the Auditor General Reports, but do not deny us the right to see the reports upon release also.
    Why object to the Auditor General Department expressing opinions – that is what they are paid to do – examine accounts (or opine why there are no accounts) then comment (express an opinion). If the Auditor General Department did not express opinions then why have the department at all, unless you are looking for another rubber stamp government department doing the bidding of the government of the day, we have too many of them already causing problems.
    Under true democratic separation of powers the independence of the Auditor General Department is like the separation of powers between administrative, legislative and judicial. Keep the Auditor General Department independent and unfettered.
  5. Chris Johnson says:

    If the last person to post, yes another Mr. Anonymous, were ever to read an audit report  he would note the words ‘ In my opinion …’ are the very fundamentals of the report and hence his work. In fact I clearly recall these were the very words used in the audit report of First Cayman Bank which all chose to ignore including some well known directors!! Please do not take up an issue you cannot possibly win. Carry on thegood work Mr. D. The reports of you and those that went before you have been supressed  far too long and thank you Jennifer for supporting the cause. Transparency rules OK?

  6. Caymanians for real transparency says:

    First I must say that I believe in the transparent release of Government Information. What is at stake here however with the current AG and his reports is that He is known to make random, almost political and personal opinions/statements in his reports. Rather than listing the facts, and only the facts, the AG’s reports are filed with his opinion, even if his opinion is not based on all of the information or solid economic principles and contract law.

    The AG’s reports are to be tabled in the PAC only, not on radio or in newspaper. The PAC then calls witnesses if it choses to do so, reviews the facts and the AG’s report, request a response from the Government of the Day and then issues to the public a final, complete report, including the AG’s report and Government’s “memo”. This is the way the process was designed to work under the Westminster System and requiring it to function according to the existing Standing Orders has nothing to do with the lack of transparency. It is the law. Section 77(5) of the Standing Orders says:

    “The Public Accounts Committee shall make their report upon the report of the Auditors General’s report on the accounts of the Government BEFORE the Auditor Generals report is laid on the table of the House and BOTH the Committe’s report and the Auditors General’s report shall be laid at the SAME TIME.”

    I believe that the fact that the AG has released reports in the past without going through the PAC may be illegal—certainly He, or someone else, has acted outside of the Standing Orders of the Legislative Assembly of the Cayman Islands.

    When you have a one-sided report, especially one filled with ‘opinions” that the AG then takes on a ‘road show’, you have very a dangerous situation. One in which the irreparable damage to persons can occur. Or you may have an issue of impacting the independent legal system or worst a case of “sub-judiciary”, if the case may be going on to the courts.

    Clearly the Law requires a thorough fact finding process through the PAC prior to the release of one side or the other’s information. Ellio is correct. Imagine what would happen if the Government released its own report on its spending prior to the AG’s or the PAC’s confirming how efficiently it spent the people’s money? Would that not muddle the waters?

    In my opinion this AG has been let loose by the last Government or Speaker because it was suitable for them from a political point but that must change and I fully support Mr. Miller’s effort to follow the law and Standing Orders. He is the perfect person for that PAC.

    I therefore admire Mr Miller for finally getting the PAC to do something about the lack of reviews of past AG’s reports–a four year delay in this committee should not occur again. In fact, no party(UDP or PPM) should have the Chair of this committee while they are in control of the Government- the temptation to stall reviews is too inherent–that is against the spirit of the process.

    As you can see the delay in issing the AGs one-sided reports has nothing really to do with the FOI….not sure why Mrs.Dilbert weighed in on this issue. She must have missed the real issue here or was led astray.

    Mr. Dugauy-please follow the Standing Orders. Mrs Dilbert please read the Standing Orders (section 77) and Mr. Miller-thank you!!!.

    • Anonymous says:

      Interesting. I have never considered the Auditor General’s Reports "random, almost political and personal opinions/statements". He does have a good eye for corruption, though. Perhaps that is what you mean, in which case I understand your concern. He is not of course answerable to the elected Government but to the Governor so I am not sure how he was "let loose by the previous govt.".  

      "When you have a one-sided report, especially one filled with ‘opinions" that the AG then takes on a ‘road show’, you have very a dangerous situation. One in which the irreparable damage to persons can occur. Or you may have an issue of impacting the independent legal system or worst a case of "sub-judiciary", if the case may be going on to the courts".

      Sounds like a typical day for Ellio at his talk show.  

  7. Anonymous says:

    Why do politicians prefer secretes to openness?  Hmmmm….

    The Auditor General Department Reports are the department’s reports, the department does not work for the PAC.  The PAC must make their own report after they consider what the relevant department in government has to say against what the Auditor General Department has to say on a subject.


    “Although the PAC chair Ezzard Miller has refused to go on the record regarding future plans for Duguay’s reports, recent comments by PAC member Ellio Solomon to the Cayman Compass indicated that the committee wanted to control the release of the reports and not just ‘dump’ them on the public.”


    CNS the reports are not a person’s reports, Duguay’s reports,  they are from the Auditor General Department and that department is bigger than whoever is the current head of the department, the department has job to do and it should do the job.  We do not need another government department not doing what it should be doing.


    Mr. Solomon did what was correct as member of the press and sought out information from Government.


    Now Mr. Solomon as a member of the UDP government is suggesting the closure of the slight opening of windows so that the public can see into the workings of government and to let the sunshine into government.


    It is scary how fast “a people” becomes “a politician”.


    Mr. Duguay or any other Auditor General, is paid by the Cayman Islands people to examine when government spends the money they have taken from us in taxes that it is spent on what it should have been spent on and we received good value for the amount spent in the services the people received. 


    Government must not exist to serve the needs of Government.


    Many of the Auditor General Department’s reports (under various persons heading up the department) over the years have highlighted government waste and mismanagement.  It is easy to see why some politicians would not want these reports to see the light of day, ever.


    We, the public are very thankful that the Auditor General’s post was created and is working. 


    The reports from Auditor General Department in the past that were kept secret covered up poor governance that contributed to the financial difficulties that the Cayman Islands Government has now thrust upon us, with poor value received for my money spent. 


    A good example of poor decisions done in secret that various Auditor Generals made the subject reports were the Port and the Turtle Farm developments and the Cayman National Bank insurance settlement of Governments claims.  Taken together it is easy to see why some politicians in the current government would have wanted to keep these reports secret.  


    Keep the windows open, open more, publish the reports as soon as they are complete, we paid for them, they are ours anyway.


    Thanks to the current PAC for tackling the backlog of work you inherited, do not spoil the good you are doing by changing the law to make Auditor General Department Reports secret again.


    Ms. Jennifer thank you for fighting to make the Information Law really mean something and not just a sham law to fool the people.


    Thank you CNS for this space.