PAs still not toeing FOI line

(CNS):The information commissioner said public authorities are still not following the proper processes in connection with the Freedom of Information law and still trying to keep information under wraps. In her eleventh decision, as she ordered the partial release of a report by the Ministry of Finance, Jennifer Dilbert pointed to delays, procedural errors and an inclination by the ministry to do what it could not to release the documents. The details of the hearing, released this week, related to a report on the Fire Service in connection with a sexual assault complaint by a female officer about a male colleague, who was eventually jailed for the offence. The ministry had refused to release the report following an FOI application made almost one year ago.

Despite ultimately finding that there were legitimate exemptions in connection with the report under the law, the information commissioner said the public authority had not relied on them until the last minute when a hearing had already started.

Dilbert noted that this indicated a desire on the part of the public authority to find any reason to withhold the document as opposed to presenting a genuine reason not to disclose. The information commissioner explained that even where there may be a genuine reason not to release everything, there are ways that government entities can still release some of the information requested by an applicant.

“It should be noted that it is possible to release a record while still protecting some of the information it contains, such as personal information, by redacting the record as per section 12 of the Law,” Dilbert said in her report. “I am still finding that many public authorities have a predisposition towards withholding records carte blanche, rather than trying to promote transparency and accountability within Government, as intended by the FOI Law, even if some parts of a record need to be legitimately withheld.”

Dilbert overturned the public authority’s initial decision to exempt the report, entitled “Work Environment Review of the CI Fire Service Department”, from release on the grounds that it would be privileged from production in legal proceedings on the ground of legal professional privilege (LPP).

She said she did not find that legal privilege attached to the report and instead ordered the document released with a number of redactions.

While the commissioner examined the arguments put forth by the ministry for why they believed that LPP applied, they were rejected as the report itself did not reference any legal matters and instead spoke to a number of general human resources issues. Although there is currently a civil suit against government in connection with the case, Dilbert said there was no compelling evidence that the purpose of the report was for legal advice. The FOI law allows the information commissioner to review the use of the LPP exemption, which is often seen as a sacred privilege by legal professionals.

However, Dilbert did say other exemptions were relevant in this case regarding the issue of “effective conduct of public affairs” and “unreasonable disclosure of personal information”.

The FOI Law permits the information commissioner to make a decision based on exemptions which could have been made on the original application even if they were not. Using this provision for the first time, Dilbert explained that the ministry in this case did not rely on the section 23exemption but parts of the report contain personal information which she said were not in the public interest to disclose and there were also issues relating to the effective conduct of public affairs. Although FOI always favours disclosure, the law provides exemptions when there is a legitimate need.

“The law recognizes that there are instances where a public authority must be able to conduct sensitive investigations, or seek testimony from employees in the secure knowledge that the specifics will remain confidential. Failing this, individuals may refuse to participate,” she added, noting that in those circumstances information canbe released with redactions as she reminded public authorities to review records before refusing access and to release as much information as possible.

During the hearing Dilbert said she again encountered a number of procedural errors as well as long delays. The failure of the ministry to respond within the timeframes set out in the law was dealt with in a previous investigation but the commissioner pointed to further attempts by the public authority to delay the issue by waiting until the hearing started before seeking advice from the legal department. “The request for a delay was denied by the ICO for several reasons including the fact that the public authority had had ample time prior to the commencement of the hearing to retain legal counsel,” Dilbert said in her report.

She also noted that the ministry had initially refused to release the report to the applicant on the basis of legal privilege alone but once the hearing began the public authority started citing other possible exemptions. The information chief refused to allow the belated exemptions, although she did in the end go on to consider them herself when she made her final decision.

Dilbert explained that a fundamental premise of the FOI law is that it provides a right to access government records. “The focus of a PA response should never be to seek out reasons to deny access per se. This right is balanced against the legitimate need for government, in specific and narrow circumstances, to exempt certain records from release,” she said.

The report in this case deals with sensitive matters but ones which the FOI applicant, a journalist with The Caymanian Compass, had pointed out were in the public interest. The report was commissioned on 5 March 2009 by the Portfolio of Internal & External Affairs following the conviction and imprisonment of Dorian Hunter, a fire officer on Cayman Brac, for a sexual assault on a female colleague that took place in 2006.

The report is in two parts: the first continued and concluded the original internal investigation into allegations of inappropriate behaviour in the Fire Service which was started by a senior officer in the wake of the female officer’s complaints made in 2007, and the second part is a workplace review of the Fire Service.

The ministry must now release the report to the applicant with appropriate redactions as ordered by the commissioner or seek judicial review before 17 June.

See full report below.