Shredding public documents a crime, says ICO
(CNS): In the wake of a recent decision by the information commissioner ordering the port authority to release documents relating to the GLF negotiations, the information commissioner’s office (ICO) has noted that under the Freedom of Information Law it is a crime to alter or destroy a public record in an effort to stop its disclosure. Following a number of comments on CNS by people worried that public authorities could be inclined to destroy information when forced to disclose things of a sensitive nature, the deputy commissioner said that during an appeal or hearing the relevant records are made available to the ICO so there should not be any discrepancies in what is ultimately disclosed to an applicant.
“The one aspect of FOI that actually constitutes a criminal offence is where someone alters or defaces, blocks or erases, destroys or conceals a record with the intention of preventing its disclosure (section 55 of the FOI Law)," Jan Liebaers explained.
"As well, the unauthorized destruction of government records is also an offence under the National Archive and Public Records Law 2007 (section 11 of the NAPR Law). Under both of these provisions an offence is punishable by fine or imprisonment. So far, neither of these two provisions has been used.
“These offences should not be confused with the normal process under the FOI Law, where a public authority may withhold access to records based on a claim that certain lawful exemptions apply, and the Commissioner may decide whether she agrees or not upon appeal,” he added.
The FOI requests that are making the news headlines are mostly those that have been refused and have involved the ICO and eventually resulted in a hearing. But information managers are disclosing information in half of all requests and increasingly making more and more information available as the implementation of the law slowly begins to influence the previous culture of secrecy in government.
According to the ICO’s latest statistics, 50 percent of cases result in full (37%) or partial (13%) disclosure.
“The vast majority of FOI requests are resolved without any action or input from the ICO,” Liebaers said. “An increasing amount of government information gets released on a routine basis, without use of the FOI Law. Whether this is sufficient can be debated, but the overall positive influence of FOI cannot be denied, and neither can the hard work of many FOI Information Managers in the various public authorities.”
Information Commissioner Jennifer Dilbert has now ruled on 19 different cases where she has in ordered full disclosure, partial disclosure or has found that the authority had applied the law incorrectly by not revealing the information requested.
When the commissioner makes a decisionthat a public authority must disclose information, Liebaers explained, it is not her office that releases the documents. “At no time does the ICO itself release responsive records,” he said. “Disclosure is always undertaken by the public authority whose records they are, whether before or after an appeal to the ICO. This is in order to avoid any confusion, and to protect the ICO.”
When an authority is ordered to release a document by Dilbert it has, under the law, 45 days to reveal the documents in question. This is to ensure that either party has sufficient time to file an appeal with the Grand Court by means of a judicial review on the commissioner’s decision if they believe she is wrong but there is nothing to keep a public authority from releasing records before this period is up, which Liebaers says has been the case in most of the appeals so far.
As yet, no decision of the commissioner has made it to the courtroom. Although the Department of Agriculture went as far as filing an appeal with the courts over the commissioner’s order that they release the Alliance of Marine Mammal Parks and Aquarium Standards and Guidelines, which had been used to create the country’s own standards for managing captive dolphins, the authority withdrew the application to the courts and eventually released the document to the applicant.
The ICO discovered Monday that there is a problem with the email address for appeals (appeals@ico.gov.ky) which is being fixed, but in the meantime the office can be reached at info@infocomm.ky
Visit the IFO website for more information and to see all of the commissioner’s decisions and reports www.infocomm.ky.
Category: FOI
Quick. Everyone swallow their SIM cards! And throw the hard drives in with the Xmas beef…..
The sanctions against corruption are relatively high.
The sanctions against shredding physical and electronic records is relatively low.
A prudent corrupt politician or corrupt high level civil servant would obviously take his/her chances at being caught committing the crime with the lesser consequence.
I hope that the FOI commissioner employs forensic technicians who can resurect old deleted emails from the system backups.
All well and good, but if the person isn't caught and proven guilty, then shredding or destruction of records is moot. Do you think records have never been destroyed?
Oh, well if we’re not allowed to shred the evidence then that’s different. OK, you got me.
All businesses and commercial concerns, particularly government should be bound by law to have a document retention policy where they are obliged to keep and not destroy any documents for at least 10 years.
All well and good until the next Ivan comes blasting through or the building they are stored in conveniently burns down one night.
Old saying in banking, " For every rule thereis a way-around-it rule."
Nothing new here.
Before FOI kicked in over in the UK millions of documents were shredded by certain government departments, including the FCO, and shipped out to be burnt.
Some people claimed you could hear the noise from the departments involved all over the Christmas holidays but there wasn't much anyone could do to stop it.
When the Data Protection Act was first introduced in the UK it only covered electronic records so, where I worked at the time, huge amounts of data was converted into hard copies and the electronic copies were simply deleted.
But shredding documents after the law has come into effect is another game entirely. If successful it must involve the total destruction of any audit trail that leads back to the documents – if that trail existed in the first place. One of the most significant things that Cayman FOI has, in my opinion, revealed is the fact that the whole record keeping process in most public bodies is fragmented to the point where the proverbial left hand doesn't know what the right hand is doing.
I think it's a safe bet that thousands of documents have conveniently been lost or shredded but because most departments have no proper registry system how can you prove it?
PS. I wonder if the loss of the appeals email address was sabotage?
Doesn't it depend on who does the shredding?
Exactly. Let's see the law enforced and then we'll have some confidence in this annnoucement.
If documents are ordered to be disclosed within 45 days, it is better governance if they are disclosed as soon as possible rather than held back for the full term of the statutory period. These are documents of value to the public held by those in public office. We, the public, are not opponents in litigation with documents withheld for as long as possible for tactical benefit.
So can someone in the relevant authority please tell us now how soon we will be getting the GLF documents? Waiting the full 45 days will just show you are treating the public with contempt.