Bad records undermine FOI

(CNS): After more than 3,000 freedom of information requests since the law that allows the public access to government records and information came into effect, the information commissioner said that Caymanians have embraced their rights under the law but poor record keeping is undermining the process. Speaking just months away from the office’s fifth anniversary and during the annual Right To Know Week, Jennifer Dilbert told CNS that she believes the law has made a significant difference to the amount of information now available in the public domain but the issue of poor record keeping is the root cause of the many procedural issues applicants face during requests.

Dilbert said there have been many times during the mediation period or during an appeal when the public authorities she is dealing with have refused access to applicants even before they find a record. She explained that authorities are refusing applicants when the documents have never even been examined, which is why the reasons for refusal often change throughout the process. When a document suddenly turns up, the authority realises they can’t refuse under the exemption they have cited so they rush to add another exemption or recognise that they must release the record.

“The procedural problems take up so much time during a hearing,” she said, adding that this had been the focus of meetings with her office, the deputy governor and the chief officers, who are taking the lead to ensure a more proactive releasing environment and better record keeping. The information commissioner said that the civil service heads were the key to improving the FOI regime as they could put pressure on the political arm of government, where ministers are trying to prevent information coming out, and on their staff to improve record keeping and proactive release.

Dilbert said that while many authorities were doing far better on proactive release and responding to requests, there was still some resentment from information managers when they receive requests requiring a great deal of work to find the records. Dilbert noted that sometimes requesters themselves could be more specific about what they are seeking to improve their chances of getting what they need more quickly. But she confirmed that the onus was on the information managers to help by contacting applicants and establishing exactly what documents, records or information they are actually seeking.

The commissioner emphasised the need for public authorities to embrace the spirit of the law and start from a position of releasing everything unless there was a legal reason not to, rather than looking at a record and trying to find a way not to release it. She said they should not look at the timelines in the law, such as the 30 day period for release, as a target but if they have the information and it can be released it should be given to the applicant at the earliest opportunity. Dilbert said there was no excuse or proper reason for authorities to sit on records until the last legal minute.

Some authorities, she explained, also saw statutory deadlines relating to her orders as targets. After being ordered to release a record following a hearing, authorities are given 45 days to apply to the court for a stay on her order ahead of a judicial review. That time line was not meant to give authorities another month and a half to withhold a record, she said, and on more than one occasion an authority with no intention of challenging the release in the courts has held onto records until midnight on the 45th day, showing a deliberate disregard for the law’s intent.

In general, however, Dilbert was pleased with the improvements in many public authorities, and said they were getting better at fighting the culture of closely guarding government information. But some government companies and statutory authorities, where board members come from the private sector, were still struggling with the fact thateverything they do can be made public.

Overall, a great deal of information that may never have seen the light of day has been released to the people. The public has thoroughly embraced the law and the publication of important information is more widespread than ever. Dilbert explained that access to information was much more thanshining a light on government or making the public sector more transparent.

“There are times when people request and receive information that can change their lives,” she said, as she pointed to personal record requests to authorities such as the pensions board, the police, immigration or for personnel records that can help them resolve long term problems.

With her own retirement approaching at the end of the year, Dilbert said she would be still be behind her desk until 31 December, when Deputy Information Commissioner Jan Liebaers will hold the fort until a new person is appointed to head the office.

With some additional money in this year’s budget and an empty post now filled, Dilbert said that the office would be able to handle much more work and focus on some of the persistent procedural shortcomings that are the main barrier to a smoother FOI regime.

Emphasising the success of FOI in Cayman so far, she predicted an even brighter and more transparent future as the public sector gets increasingly accustomed to releasing information to the public.

See below for the report and article detailing statistics relating to FOI and for the events planned for Right to Know Week.