FOI law needs protection

| 11/05/2015 | 5 Comments
Cayman News Service

Jan Liebaers, Acting Information Commissioner

(CNS): As government makes plans to merge the Information Commissioner’s Office (ICO) with the Office of the Complaints Commissioner (OCC) and a new police complaints body under a super-ombudsman, the acting information commissioner has called for the protection of his office from unnecessary changes. Despite the regular problems that users of the FOI law encounter in gaining access to information, the law itself recently received exceptionally high marks in a worldwide review of information access laws.

But the good news comes at a time when the ICO is under threat. Not only has the law not been reviewed as mandated in the legislation but proposed plans to consolidate the ICO, which in future will also deal with data protection once the law is passed, with the OCC, which investigates complaints by the public against government departments, and what is proposed to be an independent complaints commission for the police could undermine the function of all of the different offices.

Jan Liebaers, the acting information commissioner, has publicly opposed the merged and the former commissioner, Jennifer Dilbert, has also warned against it, citing a catalogue of problems if the government makes such a move. The former complaints commissioner, Nicola Williams, also made it clear that such the merger would be a retrograde step for accountability.

At the moment the RCIPS has its own internal complaints department, known as the Professional Standards Unit, but it has come in for considerable criticism. Not only does it mean the police investigate themselves, but dissatisfied complainants are not able to take their complaints to the OCC.

As a result government has said it would establish an entirely independent body to deal with complaints against the police, where more than 100 complaints are still outstanding.

However, instead government is talking about creating a super-ombudsman that would deal with all three aspects, despite their obvious differences.

The premier has proposed the merger as part of the civil service efficiency review but it is clear that there will be few savings as the existing two offices represent a mere fraction of government budget, and with the additional work by adding police complaints and data protection, they would still require additional resources. Cost cutting is therefore a questionable motivating factor in the decision.

While the current FOI regime is being lauded by the Centre for Law and Democracy (CLD), the merger could undermine those positive ratings in future.

The CLD gave the Cayman Islands Freedom of Information Law 112 out of 150 points in its Global Right to Information Rating placing it 13th in the worldwide listing of well over one hundred countries  beating the UK and New Zealand, Ireland, the United States, Jamaica and many more. Regionally, only Antigua beat Cayman by just one point.

Significant Differences in Caribbean RTI Rating Scores

“These results underscore what has been confirmed time and again these last few years, namely that the Cayman Islands FOI Law is a positive model for the region, and beyond,” Liebaers said. Although the rating exercise didn’t look into the question of how the legislation is being applied, he said he believed the country would have done well there too.

“While challenges undoubtedly remain and government could do more — for instance by more readily acting in the spirit of the FOI Law and disclosing information proactively — the overall Cayman Islands FOI regime is working well and should be safeguarded from any unnecessary changes,” he said, referring to the proposed merger.

The CLD’s rating tool analyzes the quality of Freedom of Information (FOI) legislation using set criteria measuring different aspects of the legislation, including the general right to access, the scope of the legislation, provisions for requesting information and appeals, exceptions and refusal mechanisms, sanctions and protections, and promotional measures.

The Cayman law received high marks for its clear formulation of the general right to access, the broad scope of the law and its detailed procedures for requests, the nature and scope of decision making powers of the information commissioner, broad grounds for appeal, the range of sanctions that can be imposed by the commissioner, and the legal requirements for promotion and training.

Points were deducted because some entities and functions are entirely excluded from its application, the fact that the FOI Law is trumped by all other laws restricting access, some exceptions fall outside international norms, not all exemptions are subject to harm and public interest tests, and in limited circumstances the law provides for overriding certificates that cannot be challenged in court.

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Comments (5)

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  1. Anonymous says:

    All our politicians and civil servants have no interest in accountability. The fact that they are considering this change is proof of that.

  2. Anonymous says:

    Having experience of both systems I find it very odd that our FOI Law has been rated higher that the UK’s FOIA. I suspect part of this comes from the fact that the FOI Law has to date only ever encountered one serious legal challenge so the appeal process has never really been properly tested.

    In the UK a disputed appeal ruling goes before an independent tribunal (the First Tier Tribunal) operating under the control of the Ministry of Justice (MOJ). Although you can use a lawyer, the majority of appellants tend to be self-representing at the hearing and whatever the outcome there are no costs – the process is free. In contrast under the FOI Law challenging a ruling involves a Judicial Review and a bill for at least CI$250K – putting that option outside the scope of almost everybody.

    Also, based on lengthy comments elsewhere, the ICO seems to have the power to shut the original applicant/appellant out of the review process.

    Put in simple terms – if I file an FOI appeal in the Cayman Islands and the ICO backs the public authority concerned it’s going to cost me the wrong side of CI$200K to take it any further whereas in the UK that move would be free. Ultimately as far as most people are concerned this places the ICO in an almost unchallengeable position, that’s not only unhealthy but potentially (and I’m no expert in the field) seems to put the FOI Law in breach of ECHR.

    • Anonymous says:

      I’m not sure that the FOI Law actually breaches ECHR but the lack of an easily accessible ‘independent and impartial tribunal established by law’ (like the First Tier Tribunal) to resolve disputes involving decisions by the ICO raises some interesting points.

      To be honest the FOI Law is such a mess that I doubt even the ICO fully understands it.

  3. Anonymous says:

    FUUD – The ranking would have been the same had a monkey been in charge, by their reported metric. But don’t let facts get in the way of a good story.

    Too many chiefs who think they’re important and can’t be touched. Combie these minor functionaries in to one. Cut too chiefs and maybe hire some more indians to get the work done.

    Interesting how we go from ‘cut the civil service’ to ‘keep them all employed’ depending on what job is being proposed to be cut. If we can’t cut a couple of glorified administrators with no special training needed then who can we cut?

  4. Anonymous says:

    Funny how politicians’ view of FOI changes based on whether they are in power or in opposition.

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