Info boss orders key release

| 21/05/2010

(CNS): Information Commissioner Jennifer Dilbert has ordered the Cabinet Office to release transcripts of the Constitutional negotiations. In her fourth decision made under the Freedom of Information Law, 2007, Dilbert considered that access to an issue as important as the country’s Constitution was in the public interest and found no evidence that it would cause harm. The FOI application asked for the transcripts of the three rounds of talks that took place over the course of 5 months, from September 2008 and February 2009, between Cayman Islands representatives and the UK’s Foreign and Commonwealth Office over what should be included in the new Constitution. The Cabinet Office withheld the release on four separate grounds, including prejudice of public affairs.

However, Dilbert ordered the release on several factors, including the lack of evidence that at this point in time it could be considered harmful or prejudicial to public affairs.  
The transcripts cover the negotiations which led to the final document that was put before the people on 20 May 2009 in the country’s first referendum, but the discussions between Cayman and the FCO delegates were conducted mostly behind closed doors.
Cayman was represented by members of government, the opposition, the Cayman Ministers Association, the Seventh Day Adventists, the Chamber of Commerce and the Human Rights Committee. Feedback collected from individuals and groups during wide public consultation was also addressed during the talks.
According to the Information Commissioner’s Office, the Cabinet Office originally withheld the release of the transcripts under four separate grounds of exemption: 15(a) disclosure would prejudice international relations, 15(b) information was communicated in confidence, 21(1)(b) disclosure would inhibit free and frank exchange of views for the purposes of deliberation, and 21(1)(d) disclosure would prejudice the effective conduct of public affairs.
In her deliberations Dilbert made the decision to order the release of the records because of the lack of evidence from the public authority that releasing the transcripts at this date would be harmful. She also carefully considered the public interest in releasing such information and determined that access to information on an issue as important as the Constitution of our Islands is indeed in the public interest. 
In her decision document Dilbert reveals that, although the Cabinet Office took only a week to refuse the original request, made in March 2009, it took over 100 days for the Internal Review to be completed. Section 34 of the FOI Law definitively sets out that an Internal Review of the original decision by the chief/principle officer of the public authority, which in this case was the cabinet secretary, shall be made within 30 calendar days of the notification.
Dilbert’s office made contact directly with the Cabinet Office and following that the applicant was then told the decision to withhold was being upheld. The ICO then began a process of mediation — delayed as a result of scheduling issues between the authority and the applicant. However, by the end of 2009, when it was clear mediation was not going to work, a formal hearing was set for the first quarter of 2010.
During the hearing Dilbert said the Cabinet Office had failed to draw any correlation between the release of these records and any type of prejudice.
“The only foreign government or international organization involved is the FCO and they have since advised that they have no objection to the release of the record,” Dilbert wrote.
She also revealed that the public authority had not provided even anecdotal evidence to indicate how the disclosure at this point in time would be likely to inhibit the free and frank exchange of views.
“I have not been provided with any affidavit evidence from any of the participants regarding how they might view their willingness to take part in such a venture in the future,” Dilbert noted and further said that no evidence existed that participants were informed that their comments would be confidential.
In her ruling the information commissioner says that allowing the public to read the transcripts regarding the development of the Constitution would allow greater understanding of the processes and decisions of government.
“It will also allow the public to see some of the reasoning behind certain sections of the Constitution, as well as hold the Government accountable to what they have said in the public domain about the Constitution. Issues that are this significant to the country should be scrutinized by the people affected,” she wrote. “If people can be assured that they were represented adequately and are satisfied with how these negotiations played out, it will encourage public participation in future decision making by the Government,” Dilbert said, adding that there was a strongpublic interest for disclosure.
The Cabinet office now has 45 calendar days to release the documents unless an appeal is filed on or before 4 July 2010 to the Grand Court by way of judicial review of the information commissioner’s decision.
A full copy of the Decision can be found online at www.infocomm.ky. Copies can also be picked up from the Information Commissioner’s Offices in Elizabethan Square.
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Comments (46)

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  1. tamarie says:

    Jennifer Dilbert: “If people can be assured that they were represented adequately and are satisfied with how thesenegotiations played out, it will encourage public participation in future decision making by the Government…”

    That is the problem, Jennifer, Caymanians weren’t "represented adequately." That is why they had to do what they had to do under the rug! Hate to say that, but… hearing from people and these comments here, we can see that this whole constitutional process was tainted in some way or the other by "people" claiming to represent the whole Cayman Island’s populous

  2. Joe Bananas says:

    Does anyone else see this as just one more instance of the Government being against the people instead of for the people?  Obviously whats good for the Government is bad for the people and vise verse.  The fact that this is understood by all and is excepted here just shows that Caymanis truly a Banana republic that is trying to show the face of Democracy for the sake of continued business.  Good thing Cayman Government is so dependent on outside financial money or thepeople of Cayman would have it much worse.

      As more of the truth comes out and more of the promises to business are proved false more and more of the very businesses that have helped Cayman prosper are leaving.  In time there will be no one to hold the Government accountable.(not that much of that is happening now.)  Good luck all you Caymanians that are not part of the current system! Human rights are not the same as Caymanian rights.

    • islandman says:

      Well said!…

      from a Caymanian human…

      too bad so many of my fellowmen…and women are insistant on the same old same old.

  3. Anonymous says:

    I can add nothing to what has already been said about this nonesense. I admire Jennifer’s bravery to stand up to what is right and just, but I suggest that she starts looking for another job. When people stand up to the powers to be, you know what happens……just ask the latest AG!!!!!!!!

     

    Love you Jennifer "Braveheart"

  4. Rectus femurous says:

    This is absurd. We are supposed to be celebrating because something is going to be made public that should have been made public back when it mattered?

    Let’s keep in mind, our pathetic constitution is law now. Seeing this document might have helped before the vote was taken if more people knew that the politicians made a slimy deal with the preachers.

    Now we can only shrug our shoulders and say, "damn, what a shame." 

     

    The truth is this: The PPM struck a deal with the preachers to make the constitution weak on basic civil rights because our Christian community is obsessed with gays and believes that a modern bill of rights would some how set them free to seduce everyone as well as require God to kill all of us with an earthquake. (ridiculous, yes, but that is how these people think.)

    The UDP vaguely opposed the constitution because it was too strong on civil rights! (look it up. McKeeva Bush actually said this) Eventually they came around but chose to let it remain primarily the PPM’s problem.

    Meanwhile, the voters couldn’t understand the draft constitution well enough to make an informed decision because it was extremely confusing. (Even some lawyers were not quite sure what some parts meant!) So most voters trusted their MLAs and preachers to guide them and voted for a steamy pile of a constitution that will now stink up our country for decades to come. 

    It’s so sad, given all the problems that just happen through no fault of our own, to see Cayman shoot itself in the foot like this. Cayman will not progress as it could have because of this weak document that failed to promise fundamental rights for all. 

     

    The UK also deserves blame. They know better and should have seen to it that human rights were not gutted out of this constitution. But because they view us as backward Caribbean savages they just let us go with a confusing and juvenile "first step" of a constitution. (Damn! maybe they were right in their prejudice, in light of our willingness to accept it!) 

     

     

     

     

    • It is a shame and may I say that the Brits were already satisfied with certain clauses in the Constitution that would ensure their "imperial rule" over the colonies – yes I said it!  This was not new to me.

      Yes the Governor has the "right" and "power" in the Constitution to disregard the local government’s advice if he was ordered by the UK to do – section 31,32,33.  But I think our politicians had no choice but to go with "UK flow" and try not to displease the FCO and push ourselves to Independence.

      It was either we accept this document or go on our own. It was either we retain then the powers to impose taxes and laws on us when they see fit, or we go on our own!  It was either we sold ourselves to them under circumstances to their interest or who knows what the FCO’s plan B!  Thus, we ended up having a document that really and truly took "that power of representation" from the local people, and our politicians put up with it.

      I think these talks that were hidden from the people were to hide the embarrassment of our politicians as well. THESE TALKS SHOULD HAVE WENT PUBLIC.

      So I say in theory, it is true when on election day we vote for a candidate we wanted to REPRESENT US that candidate is not secured to fully represent us as a people, because of the powers of the Governor. Caymanians are deluded by this "false democracy" to think otherwise.

      I have always said that our politicians need to fight for our cause AND OUR CAUSE ONLY in UK Parliament and yes before the UNITED NATIONS to ensure our full democratic representation – UNTIL NOW I DON’T SEE THIS HAPPENING. Sad to say, many voted last year May and didn’t know the hell what they were endorsing

      • Pit Bull says:

        Cayman needs to do what the UK determines when it comes to a crunch because this is a UK territory.  If Cayman wants to take steps contrary to the UK’s interests then only independence would be acceptable and good luck with that one  . . . there would be plenty of full one way flights leaving daily.

        • kevin says:

           Pit Bull

          Independence is not our only solution; we have other options like standing up to our rights! And even if they refuse to respect that, we still have the option to legally fight for our cause until they acknowledge us.

          I hope you are not saying we just fold hands and allow the UK to do whatever they want with us because of "interest" involved??? To me, the Constitution we have is a weak one in representing us. I would love to see it revised better.

    • Anonymous says:

      Well said.  It is sad to remember how misguided the Caymanian people where when it came to this vote.  Our trusting nature did not do us proud on this occasion. 

    • Anonymous says:

      GO RECTUS!

      Excellent summary of the events and its outcome: absolutely correct. I attended several of the public meetings and recall McKeeva and the churches "warnings" to their flocks. I also remember the "section 16" debacle between the HRC and the PPM. 

      The HRC did a great job of pointing out the deficiencies and standing up to the crooked politicians but the combination of MLA + Pastor was too much for the simple-minded Caymanian voting public, who followed like mindless little sheep.

      The UDP never hid their opposition to the Constitution. In fact, McKeeva has publicly adnitted several times that he voted against it (recall the furor over the Protocol office and cars and perks for Premier when he first elected).

      Pastor Al in particular, I recall, made several statements at the last public meeting, claiming that section 16 had to be changed or else Cayman could not protect Caymanians for jobs and scholarships — which was total hogwash.

       the reason for changing section 16 was to avoid giving rights to gays — EVEN THO THAT MEANT LESS RIGHTS FOR EVERYONE – Caymanians, black people, doesnt matter.

      Let the record PUBLICLY SHOW their lies and bigotry.

       

      • islandman says:

        I agree!…I remember only too clearly the "unholy rant" that Kurt went on with towards the HRC for simply doing their job. Until that point i had been a staunch PPM supporter. I remember being totally embarrased at his rant in the LA after the final meetings in London. I guess i do owe him for opening my eyes to the fallacy of either of these two parties (PPM or UDP) being truly for the people…they are truly for themselves it seems. As both had an excellent opportunity to "engage and educate" but chose to sell out to the highest bidder…the church and it’s backward stance on Human Rights.

        Thank you HRC for doing your part in trying!..and thank you Jennifer on your ruling here to continue the fight!…to educate and bring about real transparency!

    • Alan Nivia says:

      The correction of the woeful civil rights will come through Human Rights Act litigation in London against the FCO declaring parts of the Order in Council incompatible with the ECHR.

      There is no way that the UK can legally apply a lower rights protection in a domestic constitution than those required under the ECHR.

      That being said, Nelsonian blindness on gay rights won’t be fixed that way – it is a shame we don’t have a lib dem overseeing the OT’s because he would have had to make the much needed changing to overcome the local bigots.

    • islandman says:

      I agree withyour post wholeheartedly…and told many of my friends and questioned my politicians…but yes!…they had already made their deal with the churhes.

  5. Anonymous says:

    I wonder which politician ordered the Cabinet Office not to relase these transcripts? I doubt very much that the Cabinet Office would have come to this decision on its own.

    It cannot be anyone in the Opposition as they do not have any authority to tell the Cabinet Office anything. I cannot be anyone from the Ministers Association or the Human Rights Committee for the same reason. That narrows it down to a couple of people by my calculation.

    Then you have to ask why. If the transcripts confirm the story that the person(s) who is trying to keep the transcripts secret has been telling the public, they would not order the transcripts to be withheld. That is the way of politicians. They love documents that make them look good and hate documents that make them look bad.

    So – who is it that is in power at the moment and that told a story over and over of what they said in the Constitution talks and how they voted on the Constitution? Hopefully we will soon know.

    Thank you Mrs. Dilbert.

    • Anonymous says:

       

      Why are you so naïve to think the decision not to release these documents had to be given by one of the Cabinet Ministers?    I totally disagree with you, and the reason,  think for a moment were any of the current Cabinet Ministers’ a part of the discussions?  NO they were not, so why would they want to withhold the information?   You judgment does not make any sense at all, but as usual they get the blame for everything.  

       

       It is obvious that the decision was solely made by someone else other than a Cabinet Minister.. as they have nothing to hide. 

       

      Thank FOI commissioner for releasing this information so that all can see exactly what went on in these discussions, which I am sure will be an eye opener. 

      • Anonymous says:

        The Cabinet Office exists for the sole purpose of providing support to the Government Ministers, so it is only logical that the Cabinet itself (or in our case the Premier) would make the decision not to release the transcripts.

        In any event it is probably a moot point since one could apply to the FCO for the transcripts if our local government refuses to release them.

        The transcripts themselves should be very interesting reading, considering the Premier (then Leader of Opposition) himself at one point refused to participate in the talks if they were not held in the open for all to hear.

  6. Dennie Warren Jr. says:

    Excellent decision Mrs. Dilbert!

  7. islandman says:

    Thank you Jennifer!…and shame on those in the Cabinet Office for trying to cover this up.

    It’s 2010…c’mon Govt….time for REAL Transparency

  8. Anonymous says:

    Only her 4th decision in over a year of being in operation with more than 1000 requests made? Sounds like someone isn’t earning her $140,000 annual salary… And here we were led to think that there is significant opposition to FOI in the CS. Wouldn’t Ms. Dilbert be much busier with appeals if that were the case?

    I’ll be interested to read the released records, but I would also be interested, once released, to hear the reasoning behind the Cabinet Office’s reluctance.

    ‘“The only foreign government or international organization involved is the FCO and they have [SINCE] advised that they have no objection to the release of the record,” Dilbert wrote. [Ed.]’ Doesn’t that imply that the FCO was initially quite opposed to the release and thereby have influenced the direction taken by the Cabinet Office?

    My overall point being that I don’t think the majority of civil servants are in opposition to FOI and while Ms. Dilbert’s decision is a victory for transparency, let’s not make our commentary such a diametrically opposed dialogue.

  9. Thankful Again says:

    Hi Ms. Jennifer,

     
    Hope you are well. Just wanted to say I read your decision in its entirety. I congratulate you. I thought it was sound and very equitable. I could not help but think: this decision in and of itself had “Public Interest” ramifications relevant to the whole application FOI and its the perceptions for the same.
     
    It is precedent setting. It raises the bar for decisions in this regard. And it certainly, challenges the “culture of secrecy” in the public service that obtains now. This is a good thing for so many reasons. The least of which must be: the Public Service will understand the depth and far-reaching applications of the law. That wide reaching secrecy is gone.  And that Public Interest should not always be viewed with a negative lense ie – the world will go to hell in a hand basket if revealed. No, rather that it may mean, in the spirit of the law: better decision making; honest deliberations; better policies.
     
    Kudos and job well done. Surely this decision in of itself justifies your earnings and speaks to the weight and responsibility of this high post.
     
    Thanks for being honourable in your decisions. No doubt, your heart is always siding with your beloved isles Cayman. As a young Cayanian I am proud.
  10. Anonymous says:

    Lets see who was telling the truth about the bill of rights now.

  11. Anonymous says:

     Cayman’s constitution is horrible, a complete sham, but 90 percent of Caymanians think it’s great because their preacher or their MLA told them it is. 

    The whole process was a crime. I hope now we can analyze the crime scene.

     

     

    • Anonymous says:

      I’m not a udp supporter, but the real truth is that they opposed it.  People voted for it for some pretty stupid reasons.

      • Backstroke says:

        Im NOT a UDP supporter but  I dare say that this one falls on the PPM watch, as they spent hundreds of thousands  of dollars to bring this constitution and human rights crap to us, so place the blame where it clearly belongs, we have a very short memory here. We all know that the UK/ EU is out to damage the Cayman Islands reputation and this constitution is going to do just that by allowing them full power over us.

         

    • Anonymous says:

      I want to see the parts that show the secret deal made by the PPM and the churches to doctor up the bill of rights! cant wait!

  12. Anonymous says:

    In all due respect, this is embarrassing that we are being transparent now after the Constitution has been ratified on the same day of an Election

    • Anonymous says:

      Many records in other countries where we would have loved to have been revealed at the time are disclosed long after the event.  

  13. bradley says:

    At last!

    Let us see those who channeled the constitutional negotiations in such a way as to undermine the "democratic representation" of the people of the Cayman Islands

    Let us see those who fully agreed to the insertion of certain clauses in OUR Constitution 2009, Part II, section 33 that wrongfully made the powers of the UK’ Governor on behalf of her Majesty’s interest to disregard altogether the country’s Cabinet – elected for and by the people of the Cayman Islands whenever "they" choose to do so

    Let us see those who had the intentions of shaping the Constitution into a Christian document instead without acknowledging the many diverse faiths on the Island. Those who would love to seetheir own religious laws enforced upon the people

    Let us see those who were behind an Indepedence agenda for the Cayman Islands. Independence would ruin us!

    Let us see those who wanted to rush the process and keep all the Constitutional meetings under the rug until election day when the many UNINFORMED would vote for the document’s ratification into the law of the land

    Let us see those who opposed the FOI

    Let us see!

    Thank God CNS

    • Ollie M. Puse says:

      The need for the role of the Governor is necessary while the electorate does not represent the long term residents of the islands.  If the franchise is limited, in breach of basic rights, then the need for decision making needs to remain firmly with the Governor.

      • Anonymous says:

        Sorry Puse, how I see it –  the Governor looks out for himself and his own. A mistrust in the people here to govern themselves that you can just undermine their representation when you like, is not Democracy

        You have no valid justification

      • Thad says:

        limited franchise and thus put the Governor over the electorate???

        Hogwash!  Where else in a democratic society you see this?  I expected more common sense reasoning from you Ollie

      • Anonymous says:

        I see – the Governor will look out for Brits! There is no breach of basic rights in limiting the franchise to citizens. Being a long term resident does not entitle you to vote.   

  14. Anonymous says:

    Great work by Jennifer Dilbert and the Information Commission. I would be shocked, though, it the Cabinet office does not file an appeal as it is obvious that there is probably some seriously embarassing content that they do not want the public to know about. Forget about "prejudicing relations", this is all about protecting individual’s reputations and hiding the truth. This also serves as a reminder that in spite of all the talk of transparency, this current government has no intention of following through on its promise.

  15. Anonymous says:

    Congratulations to Mrs. Dilbert.

    I wonder whether the Cabinet Office was told to take the position they adopted by our elected government?

    Either way, the fact that she was willing to give this decision, which certainly appears to be correct, even though the higher ups wanted to maintain the culture of secrecy at all cost, says a lot about her strength of character and willingness to uphold the law.

  16. Anonymous says:

    Excellent decision, Mrs Dilbert! And a good black eye to the Cabinet Secretary for not responding in a timely manner-typical of too many senior civil servants (if they even respond at all).

    Now we shall see how we ended up with some of the peculiarities of the Constitution and be able to see exactly what our various "experts" had to say.

  17. Anonymous says:

    Watch poor Jennifer be next on Big Mac’s chopping block…

  18. Anonymous Caymanian says:

    Good. Those discussions should absolutely be available to the public.

  19. Interesting

    THE PEOPLE SHOULD HAVE BEEN ABLE TO HEAR THESE TALKS!  Just maybe, the people would not had voted for the ratification of Cayman’s Constitution 2009 if they had knew the politician’s underlying intentions embedded in the document.

    FOI too LATE!

    • Backstroke says:

      Thank god I did’nt vote for the constitution as I as a simple little Caymanian saw a lot of flaws and a lot of the UK/EU controlling us the little people.

      Is this a black eye for the PPM?

      • Anonymous says:

        I really don’t understand your reasoning. You would have preferred theold constitution which did not contain a Bill of Rights at all?

        How is it a black eye for the PPM exactly? I think it was the PPM who passed the Freedom of Information Law.