Port slammed over FOI abuse

(CNS): The Information Commissioner's Office has condemned the Port Authority of the Cayman Islands (PACI) over the way it handled a freedom of information request made by CNS back in January regarding the GLF cruise berthing proposal. In her decision delivered Thursday, some ten months after we made our request, Commissioner Jennifer Dilbert described the procedural issues relating to the request as “unprecedented” and said the authority repeatedly failed to meet deadlines or cooperate with the ICO. “In my opinion PACI showed a total disregard for the policies and procedures of the ICO, and the FOI Law,” the information boss found as she announced that she was conducting a separate investigation under section 44 of the law regarding the port's failure to comply.

In the final analysis Dilbert has ordered some further records released and upheld the Port Authority's decision to keep others under wraps. However, her main concern in this case has been the failure of the authority to follow the law, not just in terms of what it should have released but also in connection with the procedural process.

CNS made the FOI request to the port in January after a previous request by someone else was dealt with by the commissioner but was then dropped by the applicant. From that point on the obstruction and difficulties began.

Although the commissioner had ordered the records released to the original applicant, when CNS asked for the same records we were refused.  Dilbert ordered the Port Authority to comply with her decision but it objected and questioned the validity of the commissioner applying the original decision to a new applicant.

The commissioner then turned to the courts to enforce her decision, but in the face of what was likely to be a costly and long legal battle, the more efficient move was for CNS to make a fresh request. We did so, and after some time received some records. However, it was very clear that not everything relating to our request had been released and as a result CNS asked the ICO to intervene once again.

"The unreasonable manner in which this request was handled at every step along the way unnecessarily created additional cost, work and delays for all concerned,” Dilbert said as she pointed to the obstructionism of the authority over the ten months since the request was submitted. She added that the authority consistently confused the disclosure of records to CNS as the applicant with the provision of copies of records to the ICO to enable the office to carry out the appeal under the law.

“This resulted in delays and much additional work on the part of the ICO to bring the appeal to this point,” Dilbert said in her decision, rejecting outright the port's claim that to “disclose any privileged documents in the absence of compulsion as to do so would result in waiver of privilege over these records.”

She said the authority had “grossly misused” the application of legal professional privilege in this case in various different ways.

Dilbert also said that once the ICO hearing began, the port engaged in “a month of negotiation, unacceptable delays, and non-cooperative and obstreperous responses”.

The authority did all it could to prevent the ICO seeing the documents that were in dispute but eventually agreed to staff from her office inspecting the responsive records at the offices of PACI’s lawyers.

“The ICO was challenged at each step of the way, and while to expedite matters the ICO agreed to inspect records at the offices of the lawyers, it placed significant and unnecessary logistical burdens on the staff. It was doubly frustrating, and further testifies to the obstructionist approach by PACI, when the resulting informal opinion letter was apparently not seriously considered after a further delay of over a month,” she added.

One of the most serious issues that came to light during this appeal, however, was that the ICO discovered records that should have been identified and provided to the office after the original open records request made which was later withdrawn (Hearing 19-01911). In short, the port may have deliberately withheld records that should have been declared to the ICO in a hearing that was completed last year in direct contravention of the law.

Following her instructions to the port to release more documents, the authority now has 45 days to reveal these outstanding records or seek judicial review. CNS, as the applicant, has accepted the commissioner's decision that some records actually are exempt under the law and others are not relevant and will not be seeking judicial review.

“However, we continue to live in hope that the port will comply with the order to release the records that Dilbert states are not exempt and hope that the almost year long record breaking request can finally be dealt with,' said reporter Wendy Ledger.

“I have made many FOI requests in the course of my work at CNS and many of them have seen public authorities missing deadlines and failing to release what they should, requiring the intervention of the ICO, but this was the most ridiculous of them all. It is quite apparent that whatever happened regarding the sudden rejection of the GLF cruise berthing proposal, the people of Cayman will never know the complete truth.The port's reluctance at every turn over this request speaks volumes about whether this was or was not above board,” Ledger added.

See ICO's full decision below.