Another PA breaks FOI law

| 13/11/2013

(CNS): Less than two months before stepping down from her post as Cayman’s first information commissioner, Jennifer Dilbert issued her 36th decision Tuesday, in which she ordered a government department to release a withheld document and comply with other elements of the law. She also found many procedural issues where the public authority had breached FOI legislation. She pointed to “appalling record keeping” by the Department of Labour and Pensions, the government entity concerned, and raised concerns about the perception in this case that the authority was deliberately hiding a document. Although she said there was no direct evidence in this case, she warned that her office would seek to prosecute any public authority if it acquired such evidence.

In this case a document from the Office of Director of Public Prosecutions was withheld by the Department of Labour and Pensions from an applicant, even though it related directly to the applicant’s complaint about a breach of employment law by their boss. During the course of the appeal hearing Dilbert found “extremely poor record keeping” and as a result ordered the government entity to address that issue, as is required under 52(1) of the law.

The hearing came about following an FOI request by a member of the public regarding all of the documents held by government departments relating to a complaint they had made about the non-payment of overtime benefits by their employer. Although documents were released, the applicant pressed the issue as they believed more documents existed. As a result an internal review was requested but it was not completed in the time required under the law and the applicant sough the intervention of the commissioner, who began an appeal hearing.

In her ruling Dilbert said that the Ministry of Education, Employment & Gender Affairs contends that an Internal Review was completed on 9 April this year, but despite several requests from her office during the appeal, neither the ICO nor the applicant has been provided with a completed Internal Review. And even if they could claim it was completed it was still a week late, she noted.

During the course of the appeal other procedural issues were also identified, not least the fact that documents were missing.

“During the ICO’s pre-hearing investigation, further records were provided to the applicant, but the Applicant maintained that it could be seen from the records provided that additional records, in particular correspondence from the Director of Public Prosecutions concerning the case, must exist,” she wrote.

On 25 June the ICO requested the DLP provide an affidavit explaining why a record discussed in emails didn’t appear to exist or couldn’t be found. Several weeks later the employment ministry provided the ICO with an affidavit and a copy of the record from the director of public prosecutions, which related to the applicant’s case and was a relevant record which, the ministry claimed, had not come into the department of labour’s possession until 10 July this year, despite being dated 2011.

The ministry then refused to release the record under the exemption in the FOI law relating to legal privilege.

“It is surprising and not acceptable that this record could not be located during the entire life of the request and appeal, and was found only when the public authority was required to provide the ICO with an affidavit attesting to the fact that all responsive records relating to the applicant’s request had been provided to the applicant or the ICO,” Dilbert writes in her ruling.

“At best, this is an example of extremely poor record keeping on the part of the DLP at the time, which is disturbing as the Department has a key function in respect of safeguarding employment rights in the Cayman Islands. At worst, the inability of the DLP to locate this record could be perceived as an attempt to conceal it, either at this time or in the past,” she warned . “This important record should have been on the case file at the DLP, and it remains unexplained why it was not.”

Examining the claim by the labour department that the record was exempt, Dilbert disagreed as she said that there was no argument put forward by the authority why the document was exempt just because it came from government lawyers. She said the authority did not demonstrate why the subject matter of the advice, or the circumstances in which it was sought and rendered represented a solicitor-client relationship. Dilbert said the authority failed to show the communication occurred within a relevant legal context for legal professional privilege to attach to the record.

See the information commissioner’s decision below or visit the website here.

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  1. Anonymous says:

    Yep!  Still third world.

  2. Anonymous says:

    Whilst this government entity might have faltered in this particular instance, I will go out on a limb and say that it is one of the more efficient departments in Government. Is there room or place for improvement- absolutely! Is there place for increased efficiency- most definately. But overall the service provided is somewhat consistent. Credit must be given to them for dealing with an over whelming number of employer and employees with the limited resources they have. As an employer- I have had good dealings with them and know that there is alot that can be done for improvement. One of the areas they 'police' which is a much needed service is their health and safty component/department- and this person that deal with this, can be a thorn in the side of contractors but he is consistent, fair and approachable.However this in no way shold deter them from follwoing legislation that has been put in place and I hope they will take this report and make further improvements. Finally, to the PPM government, please amend/change the current Labour Law to make it more effective and a means of deterent to unscrupulus employers and employees.

  3. Anonymous says:

    Try being an employer and not present that department with documents they demand even if it is beyond their scope and not part of the law, they will threaten you with legal action so fast not even funny….and is there no conflict when the head guy teaches labour law to the public and gets compensated through fees charged but claims it is okay he is on a vacation day and tells the attendees that what he is teaching is what he and his team will be looking for….shouldn't this be part of the department's job to offer to help employers train to be compliant….not line the pockets of the guy heading the department…..SMH

  4. Knot S Smart says:

    So they might have been hiding some documents?

    Then they have crossed my line in the sand…

    And I'm calling the Jordanian…

  5. Anonymous says:

    Based on my personal experience with this Ministry, it appears they are not being "politically neutral" and following the responsibilities of their positions…again.  So, will anyone be relieved of their duties? Or, will the CS continue to "justify" and "cover-up" their wrongdoings? 

    Great job ICO!!

    • Anonymous says:

      Yeah, what ever happened to all the hoopla we had recently in regards to all those pension contributions that went missing. Will it just remain as hoopla and a bunch of hot air, or will something actually be done about it???

      • Anonymous says:

        Yes,  a lot of us would like to know where the pension  money went.

        Have any of you wonder why Ms. Williams is ignoring the fact that the Cayman Island Government has put their people at an extreme disadvantage….no cry of  liability or accountability are echoed from her, in regards to the disappearing of millions of pension money.

        She is not getting on the radio and telling John public of the millions of pension funds gone missing from people's plan. She is screaming for government to shut down the 1200 businesses because they cant pay their bills much less add a 5% savings to to their employee salary.

        Is she really serious? some of these businesses been around as long as 30 years, barely keeping their doors open. Now she wants the government to shut them down.

        Let's say each business have 4 employed, that is 4,800 employees + 1200 employers totals 6,000 going on wellfare. Sounds like a conspiracy. Why dont she suggest to work with these businesses to get them to comply, instead of suggesting government closing them down.

  6. Weapons Grade Bollocks says:

    Inefficiency and incompetence are often efficient tools in the business of official corruption.

    There are perfectly bad reasons why nothing is fixed and no one is held accountable.

  7. Anonymous says:

    Poor record keeping or efficient shredding? Make no mistake, the CS is extremely reluctant to have their inept inner workings dragged out into the daylight and they're willing to break the law to protect themselves. There needs to be stronger penalties for breaches of FOIA.

  8. Anonymous says:

    Mario's post, as Director of Labour & Pensions, should be advertised just like how David Archbold's (of ICTA) is now being advertised.

    • Anonymous says:

      There are many posts that may have been filled by expats before an ad was placed. Our new government did not make it a priority to ensure civil servants have to meet same rules as private sector. In my opinion,  should we not also be asking if there is an underlying trend to only investigate jobs of 'caucasian' heads or their placements if of same race/nationality?


      For example, If Mr Archbold was head of Legal Department would there be the same level of scrutiny if there were persons hired before ads were placed? Please look into that department, they don't appear to be hiring Caymanians.

      If the MLAs REALLY want to be fair and I sincerely HOPE are not simply calling him out because they have a personal preference for the job and not necessarily most qualified anyway, then look at all job placements. I demand greater accountability too but just because the contracted worker comes from the Caribbean doesn't mean due process must not be followed as well so when investigating Mr Archbold would like to see the MLAs demand same accountability by all HODs.

      • Anonymous says:

        I dont know why you responded to this post waving the 'race' card. No one is speaking of race/nationality, only that they were not doing a proper job in the position.

  9. Anonymous says:

    Another example of not so good governance. In another recent report on CNS, HE the Governor is quoted as indicating that accountability was essential. Dollars to donuts this fiasco will not result in anyone being held accountable by the Deputy Governor or any chief officer. It may seem extreme but perhaps the only way things will get better would be if the Governor fireds the Deputy Governor and brings in someone willing to ensure that the law is followed. Maybe then the civil service might get the message.

  10. Anonymous says:

    Gov't depts will continue with this unlawful behaviour if there are no consequences for their unlawful and procedural improper actions.  When will we see a senior civil servant sanctioned??  Until then this blatant disregard of the FOI and other laws will continue.  Who is responsible for ensuring that senior civil servants are publicly sanctioned??

  11. Anonymous says:

    Who among you could lead a department that was staffed by unemployable position holders who were appointed through political interference?  The CS will always be a place to put the unemployable dinosaurs from the days of abundance and where bright young caymanians will soon learn the old ways to cover incompetence by avoidance of responsibility. 

    • Anonymous says:

      The bright young Caymanians who can make it in private sector have too much drive and too little patience to stay in CS so they leave and will never go back. 

  12. Anonymous says:

    Heads need to role after this.

  13. Anonymous says:

    We can only hope that her successor is as diligent. We could also hope thather comments will make a difference, at the very least shame the department heads concerned, and even better, result in their removal and replacement.

    I can only imagine her frustration in this job, seeing appalling inefficiency and wrongdoing, and yet being virtually ignored. Well done, and please reconsider, your Island DOES need you!

  14. Anonymous says:

    I will bet my entire pension fund that the chicken poop people at that agency NEVER come clean, and are NEVER brought to justice. It just ain't in em folks. 

  15. Anonymous says:

    If the Deputy Governor was worth his wages he would fire a senior civil servant for non-compliance with FOI obligations in their department.  But he won't because he now is more interested in begging for pay increases instead.

  16. UHUHUH says:

    AannHa da wah unna get!  Mess wid miss Dilbert. She nah taken no fuushness.

  17. Anonymous says:

    $ame $hit different government $ame dysfunctional Civil $ervants

  18. Anonymous says:

    Where is the accountability?

    What is the Minister and Chief Officer going to do to rectify this breach of law 

    • Hear Hear says:

      I met with DER Mr. XXXX on THREE occassions due to an employer harassinng me, making my work life impossible, and very unfair treatment in many ways.  I took going to DER seriously.

      Each and every time, Mr. DER barely took ANY notes and fobbed the entire thing off.  He said if Insurance was not paid properly to go seek the Health Insurance Board, If my discrimination was because I was a woman – Go to Gender Affairs,…..not a single piece if SH*T would stick to that teflon manager! 

      Until we get some real accountability this country will be stalled.  People need to see the stick and not the carrot. We have bent the rules for so long that no one even thinks about adhering to them. 

      Get a big stick and forget the carrot.

    • Anonymous says:

      In any civilized country they'd fall on their sword. There's no accountability at all here.

    • Who the Cap Fits says:

      nuffing honey!

    • Anonymous says:

      Hats off to Ms. Dilbert!!!!  in her posts.  I hope the other person that  succeeds her  is, straight forward, and respects the letters of the Law on subjects at the forefront. Have a happy and joyful retirement with Gods' blessisngs.   

    • Anonymous says:

      What breach? The ICO herself siad she coudl show no breach. Bad record keeping yes. Illegality, no.