FOI procedures still faulty

(CNS): In her latest decision Information Commissioner Jennifer Dilbert has revealed further procedural problems with another public authority when it comes to complying with the Freedom of information Law. Although in this her eighth hearing she upheld the public authority’s decision to withhold information, she has once again pointed to a number of problems during the process of the request to the Heath Regulatory Services, as well as poor record keeping. The FOI request was made by an applicant who was seeking information about a third party’s insurance provider but the record was not released by the authority as, it said, it would have divulged personal information.

The commissioner upheld the decision and stated that, “The responsive record in this matter is exempt from disclosure under section 23(1) of the Freedom of Information Law, 2007 as it would involve the unreasonable disclosure of the personal information of the Third Party. I do not find that there is an overriding public interest in disclosing the record.”

The applicant made the original request in June 2010, asking for “the name of the insurance carrier who provides malpractice coverage” for a named practitioner in the Cayman Islands who the applicant was reportedly seeking to take legal action against as a result of alleged malpractice.

The HRS had exempted the record from release as they had assessed that it contained personal information. Section 23 of the FOI Law requires that a public authority not grant access to a record if it would involve the unreasonable disclosure of personal information. In the hearing following the applicant’s appeal the commissioner had to determine if the information was about an identifiable individual.

“In any situation where the identity of the individual can be ascertained or deduced by the information in the record, that information is personal for the purposes of the FOI Law, unless it is excluded from the definition in the Law,” stated Dilbert, adding that the information in the responsive record “is obviously about, and linked to this individual, in the sense that it provides particular, biographical data about this individual.”

Next Dilbert said she had to examine if it would be unreasonable to disclose the information considering in particular the distinction between a public servant or public authority, and a private individual. In the case at hand, the Third Party was a private practitioner, a fact she said contributed to her final decision.

She also noted that she did not find there to be a case for public interest in its disclosure. “Even if a patient were interested in seeking compensation for alleged malpractice, they would not be entitled to contact a practitioner’s insurer directly and would need to seek a remedy through the courts” said Dilbert.

However, Dilbert disagreed with submissions made by the Third Party that the record itself should not be subject to the FOI Law or that it was vexatious. The commissioner said the document was a record as it was collected by the HRS during their normal course of business. “A regulator must have the right to acquire and hold such documentation as is necessary to carry out its regulatory functions,” Dilbert noted. She also added that the PA had not said the record was vexatious but it was the Third Party that had argued it was and she said it was not “within the purview of a Third Party to make representations as to why a PA should find a request vexatious.”

Despite upholding the HRS’s decisions in this case, Dilbert did still uncover a number of procedural problems and poor record keeping during the hearing in relation to the requirements of the Freedom of information law.

“During the course of this Hearing, it has been brought to my attention that there may be some inadequacies in the record keeping and procedural policies of the HRS, particularly as they relate to files dating back before the creation of the HRS and enactment of the HP Law,” she said.

“In order to ensure that the HRS is able to effectively carry out its vital duty of regulating the provision of health services in the Cayman Islands, I would strongly recommend that these inadequacies be addressed, and that a full audit be conducted on all the documentation held by HRS on currently registered practitioners in the Cayman Islands.”

In her decision she also pointed out that the procedures regarding the involvement of the third party in this case were incorrect and while the HRS had asked for an extension in order to involve themit was still 12 days late in informing the applicant that the FOI had been refused.

She also drew attention to the ambiguity surrounding the internal review which was requested after the FOI was refused.
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“During the investigation of this appeal, it was not immediately evident if an Internal Review had been conducted,” Dilbert said, but it was discovered that the director of the HRS had been involved in the initial review of this request. The applicant should have been told that an Internal Review was not possible and advised to appeal directly to the Information Commissioner.

“It is critical that the HRS identify and designate the person who will conduct Internal Reviews. This should not be a floating responsibility that is transferred to another person if and when the designated person is involved in the original decision, as this will cause confusion and unduly delay the appeals process,” Dilbert added.

See the commissioner’s 8th decision below.