PA ordered to find records

| 10/12/2013

(CNS): The acting information commissioner has ordered the Ministry of Education, Employment & Gender Affairs to go back and look again for records requested under a freedom of information application regarding documents used in a Human Rights Committee report published in 2007. Jan Liebaers found that the ministry did not make reasonable efforts to locate the records, as required in the law, when they told the applicant that the records he wanted did not exist. In this latest ruling, among the many procedural problems highlighted, the acting commissioner found, once again, that there was poor record keeping and ordered the ministry to get its house in order.

Liebaers pointed to the numerous past occasions commented on by the Office of the Information Commissioner (ICO) in respect of the poor record keeping standards applied by some public authorities. In this case, the records were generated by a government committee and the ICO raised concerns about the confusion surrounding who is responsible for keeping the records of committees, especially when, as was the case in this hearing, the committee no longer exists.

“This is a highly unsatisfactory state of affairs since committees perform important work, and their actions and decisions should be properly recorded and maintained over time,” he said. “Some committees in particular, such as the HRC in the present case, make decisions that may have a significant impact on individuals and organizations, and its records – like all government records — should be maintained in accordance with the provisions of the National Archive and Public Records Law.”

This particular hearing was triggered when an applicant seeking documents that were used to write a human rights report, which included details about him which he felt needed to be amended, was told the relevant records did not exist. However, he believed they did and in order to prove that the report needed to be changed he requested all of the documents that had been used in the making of it.

During the course of the appeal the acting commissioner found that there obviously were relevant documents in existence somewhere because there was a reference to them in correspondence with the applicant as well as in the report.

Therefore, Liebaers found that the authority did not look hard enough and did not make the necessary effort to find the records, and he told them to try again. He pointed out that although the records related to the Human Rights Committee, no one contacted the Procedural Sub-Committee involved in making the report or the former chair of that committee.

“This seems to me to be a serious flaw as he would be a person who might reasonably be expected to hold records of the Committee’s activities,” Liebaers noted.

The acting commissioner also raised the point that while the public authority in question says the records do not exist, it has not explained why they no longer exist or what has happened to them.

“The Ministry has not provided any explanation of why these records — which they were responsible for at the time of their creation — apparently no longer exist,” he notedin the decision. “In the course of the appeal the Applicant made an email available to the ICO which dates from just before the HRC Report was issued and in which a member of the HRC stated that the HRC at that time was making inquiries and expected to receive further documentation from various parties on the Applicant’s case. Similar statements are also included in the HRC Report itself, for instance at paragraphs 56, 59 and 60.”

Given that many important pieces of information were not provided by the ministry in the explanation of its search efforts, Liebaers concluded that the rigour and efficiency of the search conducted by the ministry was inadequate. He said the education ministry did not meet the requirement of the law to make reasonable efforts to find the records.

The acting commissioner gave the authority 30 days to either find the missing documentation or supply an affidavit listing the efforts made to locate the records.

See the decision in full here.

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Category: FOI

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  1. Anonymous says:

    Ordered? They don't take orders… they do their own thing

  2. Anonymous says:

    Mr Liebaers has always been the energy and brains behind the ICO so it's a pity he won't be made the Information Commissioner as he is not a Caymanian.

  3. Anonymous says:

    This is typical of this Ministry. They are terrible when it comes to FOI requests. I have made a number of requests under all kinds of names and inevitably I get false or wrong information and have to tell them that they are wrong. This is terrible. The fact that I know they are wrong gets me the correct information eventually but what happens when you do not know the andpswer to what you are asking for and they send you false information. Corrupt or inept??.

    • Anonymous says:

      I thought it was the latter, then the former, and now, my best guess is possibly both!

    • Anonymous says:

      "Corrupt or inept??."


      Sadly, they are merely products of the Caymanian Education system itself.

    • Anonymous says: