Dilbert says no to fees or ID

(CNS): The information commissioner has released a discussion paper defending the public’s right to make freedom of information requests anonymously or using a pseudonym and for access to remain free of charge. Jennifer Dilbert said that removing the right to anonymity would have a “chilling effect” and that it would be unfair for government to charge people for information because of their poor record keeping. Following the invitation from the Legislative Assembly’s office for public comment on the review of the current FOI law, Dilbert has also released her proposals for improving the law and is encouraging the people to join in the discussion by submitting their comments.

In the absence of any information released by the LA about the review of the law, the information commissioner released both her recommendations to improve, clarify and streamline the legislation, as well as a specific paper defending the right to anonymity and opposing the introduction of fees outside of the existing provisions.

Dilbert said on Monday that she hoped the documents would generate more public interest in the review of the law and support the LA’s subcommittee in their deliberations as the it comes in for scrutiny. The recommendations in Dilbert’s report are based on the expert understanding of the FOI Law and its daily application by the commissioner and her office. It also contains input from a number of information managers and users, gathered since the autumn of 2009.

Her position paper on anonymity and fees was written as a partial response to comments made in the media by the premier about “Mickey Mouse” applicants and whether the system was being abused by the fact that requests for access to government records could be made anonymously and without cost.

Dilbert argues strongly in favour of retaining anonymity for a number of reasons and also states that the issue of cost has more to do with the public authorities and their failure when it comes to record keeping and publication schemes than the burdens of the FOI law.

She said removing the right to anonymity would mean that information managers would be forced to verify the identity of every requester, which would not only be unworkable but would also undermine the goals of the FOI law to encourage transparency in government.

“Anonymity is an important aspect of the FOI Law in a small community like the Cayman Islands. It is not related to the potentially vexatious nature of an FOI request,” Dilbert reveals in her paper. She says removing it would undermine the reality and perception of fairness of the FOI process and have "an overall chilling effect on the willingness of the general public – particularly disadvantaged and vulnerable individuals — to use FOI to obtain the information they need,” she said. “An applicant’s name is, and should remain, irrelevant to the determination whether to disclose information or not.”

When it came to fees, Dilbert said she believed complaints that FOI was too expensive were driven by three underlying factors. She said the relative ineffectiveness of the information managers, the state of record keeping in public authorities and the relatively small amount of information proactively published by government were the real reason the law was causing problems for civil servants. She said it would be unfair to make applicants pay for government’s own inefficiencies, and suggested instead that the real causes should be fully investigated and corrected before considering fees.

Dilbert said that the overall review of the law was important to ensure that it was working effectively but she said it was already well utilised and had made a real difference to the people of the Cayman Islands. In her recommendations she outlines five main areas: improving exemptions, improving the appeals process, increasing the effectiveness of the ICO, clarifying roles and responsibilities, and improving procedural effectiveness.

“The FOI Law is already being used by a large number of people and it is important to understand the issues that might be under review,” she said, adding that there was a balance between the public’s general right to access information and the government’s legitimate need to keep some information confidential.

“An open government empowers an informed electorate, which will strengthen democracy in the Cayman Islands. This Law gives us all the right to ask questions and access more information, which will in turn make us more able to participate in national issues that concern our islands.”
The commissioner reminded people that for years it was the “marl road” that informed people but now there is a system in place that helps to ensure accurate information is getting to the people.

Although the final decisions on what changes will be made to FOI lie with government, the commissioner noted that it is the responsibility of the public to inform their elected representatives on their view as she encouraged the public to voice their opinions and suggestions for reform to the FOI Law.

Comments can be forwarded to the attention of the Clerk of the Legislative Assembly or sent electronically to foi.lgl@gov.ky. Deadline for submission of comments is 8 May 2011.

Full versions of the ICO’s FOI Law Review Recommendations and their Position Paper on Anonymity and Fees, as well as other reports on the operation of the Law produced by the ICO, can be accessed below of at www.INFOCOMM.ky

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