FOI law needs protection

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.