FOI
Regional FOI conference sets precedent
(CNS): For the first time, Caribbean governments and civil society have come together to discuss access to information, public participation in governance, and access to justice at a landmark conference held in Kingston, Jamaica. Representatives from eleven Caribbean countries attended the “Regional Conference on Freedom of Information in the Caribbean: Improving Management for the Environment,” including Information Commissioner, Mrs. Jennifer Dilbert and Deputy Information Commissioner, Mr. Jan Liebaers. “Not only has Cayman passed legislation, but we have legislation that is operational and being enforced by the ICO. We have found that in many Caribbean countries, while they had the law on the books, the law was not enforced and we were able to provide guidance,” said Commissioner Dilbert.
At the close of the two-day conference on 21st March, 2013, governments, civil society, and media announced the decision to launch a Caribbean network on freedom of information to support processes to improve standards for access to information in the region.
Dr. Carolyn Gomes, chairperson of the Access to Information Advisory Stakeholders’ Committee and Executive Director of Jamaicans for Justice (JFJ) said, “freedom of information is the most powerful tool for ordinary citizens to arm themselves with the information they need to change their lives. Launching this freedom of information network will build opportunities for collaboration, learning and capacity building among information commissioners, civil society and media across the region.”
Countries reviewed the status and effectiveness of freedom of information laws, the number of requests for information being made in each country, and institutional structures for implementation and enforcement. Jamaica is one of seven Caribbean countries (Belize, Trinidad and Tobago, Antigua and Barbuda, Dominican Republic, Jamaica, St. Vincent and the Grenadines, and the Cayman Islands) to have freedom of information laws in force. Five countries have draft laws pending, and Bahamas and Guyana have passed laws but they are not yet in force. Gaps in implementation were noted in Belize, Antigua, and St Vincent and the Grenadines, which have laws that have not yet fully been utilized by the public.
“Freedom of information laws ensure that citizens can access official documents from their governments and give them a voice in decisions that directly impact them and the environment,” said Danielle Andrade, Legal Director of the Jamaica Environment Trust.
The conference was funded by the Cayman Islands Information Commissioner’s Office, The Commonwealth Foundation, and the United Nations Economic Commission for Latin America and the Caribbean. Organisers included the Jamaica Environment Trust (JET), World Resources Institute (WRI), The Access Initiative (TAI), Jamaicans for Justice (JFJ), The Mona School of Business and Management, and the Access to Information Unit of Jamaica.
Info boss says candidates need to understand FOI
(CNS): Candidates putting themselves forward for the May election are being invited to meet with the information commissioner to discuss the Freedom of Information Law. Jennifer Dilbert issued an open invitation to would-be politicians following public discussions in the media that, she said, demonstrate a lack of understanding of the law among some candidates. Meanwhile, the current politicians have finally completed their review of the law, which was a requirement of the original legislation. The sub-committee has made recommendations to clarify the FOI law and improve its application but has rejected calls to introduce a fee or remove the right of applicants to remain anonymous.
FOI has become a critical piece of local legislation and Dilbert stated that so far her offer has been taken up by six candidates, who found the discussions to be helpful and educational. In her letter to the political hopefuls, Dilbert said it was obvious to her that “there exists a real lack of understanding of Freedom of Information Legislation” and practice in Cayman.
“This is a fundamental tool for upholding good governance and human rights, and I believe it is a topic that each candidate in the upcoming election, and even more importantly, all of our legislators, should have a good understanding of,” Dilbert added.
She said that she and her staff who would be happy to spend some time with the candidates to provide them with an understanding and grounding in the law and its practical application, as well as answer any questions they may have. All candidates who have not yet met with Dilbert or her team are encouraged to contact her office to make an appointment, she said.
The Freedom of Information legislation was introduced by the PPM government in 2007 and came into force two years later. Although several public authorities are still struggling to follow the law, it has ushered in a new era of transparency that the government has never experienced before. It has also exposed considerable weaknesses in government’s record keeping and in some cases a continuing reluctance to divulge information that the people have a right to know.
There have been many difficulties with procedural issues and the information commissioner has had to deal with more than 28 appeals to date where public authorities have fought hard to keep records under wraps. Nevertheless, her under-staffed office as done as much as it can totry and change the culture of secrecy in government. As a result, thousands of requests for information from government have been granted since the law came into effect. As well as making government more accountable, it has given the public a much greater insight into some of the systemic problems related to the country’s governance.
The law, when it was drafted, called for its own review under section 58, and although that should have occurred by 2010, the report is now complete and legislators have agreed on a number of administrative amendments, some clarifications and other changes to help with the law’s application. Controversial suggestions made by the former premier that applicants should have to pay to make requests and reveal their identities have, however, been rejected by the committee.
The report is now a public document and available from the Legislative Assembly.
Taylor keeps budget secrets
(CNS): The information commissioner has upheld a decision by the governor's office to keep correspondence between the Cayman government and the UK over the budget secret. In her 28th decision Jennifer Dilbert found that the records in question were exempt under the Freedom of Information law as she said she was convinced thatthe documents contained “candid and robust discussions” that are protected under the law in relation to free and frank exchanges between officials. Weighing her finding against the public interest, Dilbert said disclosure of the records would not necessarily promote greater understanding of the budget processes or reveal any wrongdoing.
“The public has already been made aware, in some detail, of the processes for review and acceptance of the budget, and I do not believe that further promotion of accountability within government would result,” Dilbert wrote in her latest ruling. “Disclosure would also not reveal wrongdoing or maladministration in the budget process.”
The request was made last August by the local newspaper, The Caymanian Compass, for budget-related communications between the governor, the financial secretary, the former premier, the UK’s economic advisor and the OT minister during the time the Cayman government was doing battle with the UK over the 2012/13 budget. The budget deliberations with the UK were contentious, to say the least, and Bush even threatened to introduce an ex-pat tax in order to meet the demands the UK was placing on Cayman to reach a hefty budget surplus.
However, despite the controversies surrounding the budget and its ultimate delay of some three months, the back and forth between London and George Town around that time will now remain secret.
Dilbert said she considered that disclosure would “be likely to have a significant adverse effect on Government’s ability to carry out free and frank discussions to the benefit of the Cayman Islands, and disclosure would therefore not be in the public interest.” The information commissioner also noted partial access could not be granted in a meaningful way.
This exemption under the law is there to allow government officials to sometimes be able to talk candidly to other governments or among themselves with an expectation of privacy in order to conduct public affairs. However, whenever the exemption is applied it must be weighed against how much the information is in the public interest. If there was evidence of abuse of office or any kind of wrongdoing in the correspondence in question, the exemption could be overturned, so this section of the law does not act as a free pass to civil servants to keep all records under wraps.
See the commissioner's full ruling below or visit the ICO website www.infocomm.ky.
Governor wins legal review in Tempura secrets battle
(CNS): The governor has won the first round in his legal fight to keep details of a discredited internal police investigation secret. His office confirmed Tuesday that Justice Sir Alan Moses had stayed the release ofa document that Information Commissioner Jennifer Dilbert had directed should be given to an FOI applicant. The request was for a copy of a report relating to a complaint filed by Martin Bridger (left), the lead investigator on the ill-fated operation into potential police corruption. However, the governor is fighting to keep the report under wraps and out of the public domain. As a result, his office is the first government entity to attempt to overturn one of Dilbert’s decisions through the courts.
The British judge has approved the governor’s application for judicial review and the next step is to set a date for the substantive hearing, but in the meantime the report remains secret.
The document being sought by the applicant is a review of a complaint filed by Bridger, which cost the public purse around $300,000 to produce. Bridger has seen the document relating to his complaint, which was not upheld, but he is not able to release it as he was bound by confidentiality.
However, some of his complaints were reported in the UK Press and the former Scotland Yard cop's main gripe was his investigation was prematurely ended by the authorities in Cayman in what he claims amounted to an orchestrated cover-up of errors and bad decisions by the powers that be.
When a member of the public filed an FOI for this report it was refused. However, Dilbert in her decision overturned that denial and ordered the office to release the report. The governor then filed an application for a judicial review on the 45 day deadline, which has now been granted.
Given the efforts that the UK representative is making to in order to keep the content of the report secret, it is unlikely that the judicial review hearing will be open to the public.
Treasury owed $16.5M
(CNS): The Cayman Islands government was owed more than CI$16.5 million in uncollected debt at the end of 2012, a freedom of information request has revealed. The massive hole in the public purse ranges from more than $250,000 on more than 280 bad cheques to $1.7 million on 698 uncollected garbage fees. The heftiest debt of all, however, is some $12 million owed to government for overseas medical expenses. The open records request made by a CNS reader shows that during November the Treasury recovered just over $94,000 and then in December just under $83,000. However, more new debts were added worth $109,745 in November and a further $79,800 in December.
The 1,495 debts on unpaid fees to government run across the board, from cruise passenger and travel tax to loans issued by various government departments. The FOI request did not state the length of time any of the specific single debts had been outstanding but with the apparent increase in cash owed to the government coffers exceeding the small amounts government seems able to collect each month, the debt appears to be a significant problem.
According to the Debt Recovery Unit, however, no new bad debt cases have been referred to the legal department since April, despite the obvious conclusion that the Treasury has been owed some of this cash for a long time.
The debt owed to government represents around 3% of its annual operating revenue.
Challenge to info boss begins court process
(CNS): The governor of the Cayman Islands begins his bid this week to fight an order from the Information Commissioner that his office reveal a document relating to a controversial corruption investigation into the RCIPS under the freedom of information law. Lord Justice Moses from the UK appeals court will be sitting administratively in the first hearing on Friday regarding the first ever judicial review of a decision by Jennifer Dilbert, the information commissioner. Ironically, the first challenge to an order by the commissioner after some 28 decisions has come from the UK, which has pressed for more government accountability, via Duncan Taylor’s office and not from a political ministry.
The governor is fighting to keep under wraps the report into a complaint made by Martin Bridger, the senior investigating officer in the internal RCIPS corruption investigation, which also spread to the local judiciary, .
Following his departure from the Cayman Islands and the end of his investigation, Bridger had filed a complaint in the UK regarding the way that Cayman authorities, including the governor’s office, had dealt with the discredited investigation. The complaint was dismissed and Bridger was given sight of the document and the reasons why his complaint was dismissed but only on the condition that he did not reveal its contents.
A freedom of information request was then made for the document, which was refused and appealed. In her decision on the appeal Dilbert found in favour of release and ordered the governor’s office to make the document public. However, following the 45 day period the governor’s office filed an eleventh hour judicial review with the Grand Court to challenge Dilbert’s decision.
As a result of the nature of the judicial review and the governor’s efforts to keep the controversial document secret, it is extremely unlikely that the hearing will be open to the public.
The commissioner’s office is defending Dilbert’s decision under the law and is being represented by Broadhurst LCC, a local private firm. The attorney general, whose chambers played a significant role in the Operation Tempura case, will not be representing the governor. Instead, he will be represented by Walkers to deal with what is likely to be a costly legal battle funded by the public purse.
Bridger has also stated that he will be supporting the commissioner in the legal drama as he too has an interest in the document becoming public, believing that the content will vindicate his investigation, which has been heavily criticised, not least because of the arrest of a high court judge during the process of the corruption probe.
The arrest was ruled to be unlawful by Justice Sir Peter Creswell. Justice Alex Henderson, the judge in question, walked away with a payment of more than $1.2million in damages as a result.
Related article:
Pension board failed to justify exemptions
CNS): Although the information commissioner has upheld a decision by the Public Service Pensions Board to withhold some records from an applicant following a freedom of information request the commissioner has once again pointed to procedural failures by a public authority. In this case the board did not give any reasons for its decision to exempt certain documents in contravention of the law. The PSPB also missed deadlines among other issues leading to another long and protracted FOI battle for the applicant. In her 27the decision under the Freedom of Information Law issued on Monday, Jennifer Dilbert confirmed the decision of the board to withhold records from legal professionals to their clients but she ordered the disclosure of others.
The request was originally made one year and two months ago and the commissioner pointed to several factors which contributed to this matter taking an inordinately long time to come to hearing. She said that throughout the investigation stage, more records were fully or partially released to the Applicant which often took longer than promised by the PSPB.
Redactions were also revised to release further information and confusion reigned over what was and wasn’t disclosed a dispute, which had to be resolved by the ICO. In addition, Dilbert pointed to the growing workload of her understaffed office. However, she also stated that it should not be contingent upon the ICO to compel public authorities to meet their obligations under the Law.
One of the concerns raised by the commissioner in this latest decision was that the PSPB failed to provide any reasons for the use of the exemptions at any stage during the request and appeal.
“I can find no reference in any of the material before me, neither in the various responses given to the Applicant on request or at internal review, nor in the submissions prepared by the PSPB in preparation for this Hearing, to reasons for the application of the exemptions claimed,” Dilbert writes in her decision.
As this is the third hearing in which the PSPB has been involved, Dilbert pointed out that the public authority should be well aware of the requirements of dealing with an appeal including the hearing stage, and that the burden of proof is on the public authority to demonstrate that they have correctly applied the exemptions.
Dilbert pointed out as a result of that failure she was the one who had to ensure she protected the disclosure of information that is clearly exempt under the FOI Law such as legal professional privilege and personal information of a third party that it would be unreasonable to disclose.
See the full decision 27-00912 c on the ICO website at www.INFOCOMM.ky
Mac’s travel bill revealed
(CNS):Updated 3:45pm –Over the last twelve months that McKeeva Bush held office as premier of the Cayman Islands he spent more than $350,000 travelling overseas and, combined with information from previous years, Bush spent almost $1 million on overseas travel while in office. Despite originally refusing part of a records request made by CNS regarding the former premier’s travel expenses because of the on-going police investigation, an internal review has successfully resulted in the costs being released. In a letter to CNS the chief officer in the ministry said he had reconsidered the situation and, taking into account the fact that the documents would have been released were it not for the police investigation, the ministry forwarded the documents to CNS Monday.
The spreadsheet reveals the costs for all airfares, accommodation and subsistence allowances for all trips taken by the then premier and his support during 2012, with the exception of his final trip to Jamaica after his arrest.
In the previous release of documents relating to a freedom of information request it was revealed that the then premier Bush had travelled to more than 34 nations. The request revealed that between June 2009, a week after taking up office, when he visited Paris, London Washington and New York, until 15 October 2010, Bush had racked up a travel bill of over four hundred thousand dollars. But from January 2012 until November 2012 he added a further CI$350,091.89 travelling in the region and around the world.
A request which was released later on Monday filled in the missing years revealed that Bush has spent close to one million on travel throughout his period in office from the public purse.
The current premier and former deputy premier, Juliana O’Connor-Connolly, has also been severely criticised for her travelling and the $200,000 she spent over the first three and a half years after she took office in 2009 as DP and minister for district admin, agriculture and works. However, McKeeva Bush spent more money on travel in one year alone than O’Connor-Connolly has since the last elections.
The former premier also criticised his predecessor at the tourism ministry, Charles Clifford, for racking up a $200K bill at the ministry, though it is understood that figure covered travelling expenses for all tourism ministry staff over the full four year term.
Bush’s travel expense spreadsheet reveals that many thousands of dollars have been spent from the public purse on airfares and accommodation for himself and the accompanying delegates on the 18 trips he took during 2012. The document also reveals several significant cash transfers on to Bush’s government credit card without explanation. Although a payment for some $17,000 paid to the card was debited, several more transfers to the credit card, totalling around $70,000, have been made and remain unexplained.
The alleged misuse of his government credit card is believed to be at the heart of one of the investigations currently being undertaken by the RCIPS in connection with Bush’s arrest in December. Although this was cited as the reason why the FOI request was first refused, the ministry confirmed Monday that the police did not believe the release of the spending details would hinder their enquiry.
Bush is expected to return to police custody for further questioning next month, having been was bailed in December, but the police have not yet revealed the actual day that the former premier will be back to face a further grilling in connection with his arrest for theft and offences under the anti-corruption law.
See details of Bush’s travel expense for 2012 below and see additional document covering 2009-2011.
Related articles on CNS:
ICO report reveals continuing problems
(C
NS): A shortage of resources, a failure of legislators to update the law, authorities taking too long to answer requests and direct contraventions of the law are some of the issues plaguing the country’s Freedom of Information (FOI) regime. Despite the best efforts by the Information Commissioner (IC), her very small staff and the public’s growing use of the freedom of information law, many public authorities are still struggling to meet the law’s requirements. In her latest quarterly report Jennifer Dilbert reveals that between 1 July and 30 September last year there was an 18% increase in requests made to public authorities.
Despite the need for the legislation to be amended in order to make improvements to accommodate the growing usage of the FOI Law, Dilbert reveals that no movement has been made to this end.
“No further progress has been reported on the statutory review of the FOI Law, which was commenced by the Legislative Assembly in 2010,” she said. However as a result of the further experience her office now has more than two years later, Dilbert said she is reviewing the recommendations she submitted in September of 2010 in order to assess their continued value and any for further changes.
Among the problems relating to the time it takes for authorities to release information, the commissioner also noted in this latest report that on at least two occasions during the quarter in question that it appears as if a public authority may have failed to identify and provide records in response to requests. Reminding public authorities of the law, she warned that her office would not hesitate to enforce the law against civil servants who commit an offence.
Although the report indicates that there were no judicial reviews of the IC's decisions, since its publication the governor's office has filed for a judicial review regarding a decision by Dilbert instructing his office to release documents relating to the controversial Operation Tempura investigation. This will be Dilbert's first courtroom battle after some 29 hearings.
See full report below.
Churches get $400k from fund
(CNS): Close to a half million dollars was given to churches from the controversial Nation Building Fund created by the former premier and administered by his ministry, during the 2011/12 financial year. According to a document released under a freedom of information request submitted by the independent member for North Side, Ezzard Miller, 11 churches received $420,548 from the public purse for a variety of reasons. A further $1.5 million was randomly given to people and causes connected to the arts, sports and community activities across a diverse spectrum. Almost $8000 was also used for the proposed Christian heritage monument in George Town.
From a $3000 grant to fund a Caymanian’s efforts to get on the US TV Show X-Factor to $15,000 for the UCCI’s observatory, the grants range from as little as $300 to as much as $750,000.
Although a significant portion of the funding appears to be going to worthwhile causes, it has always been controversial for variety of reasons. While the former premier has insisted the funds given out under the nation building programme are transparent, the actual criteria and reasons for granting one application over another have not been spelt out.
Most of the grants appear to be to assist young people in their education or cultural development with grants being given to sports clubs, the scouts and brownies as well as a local half-way house. The vast bulk of the money however, went to around 85 students who were given scholarships under the programme, which is outside of the normal scholarship application process. Amounts to individual students ranged from as little as $588 for a summer camp scholarship for one student to as much as almost $46,000 to another scholar studying in the US.
The grants have also caused controversy because these scholarships are not dealt with by the education department and again, the basis on which these special educational grants are awarded has not been defined. In this third full financial year of the fund’s existence around $1 million was given to the various students.
See full details of where cash was allocated below.