CIAA ordered to release ‘go around’ records

Owen Roberts International Airport, Grand Cayman

(CNS): The acting information commissioner has ordered the Cayman Islands Airports Authority to release an Air Traffic Control (ATC) Occurrence Report and the recording relating to a ‘go-around’ incident at the airport last March. The CIAA refused to grant these following a freedom of information request in the wake of the incident but Jan Liebaers found in his ruling that they would not prejudice the commercial interests of anyone or anything, as claimed by the authority. He also raised a number of procedural issues and warned all entities again about the incorrect use of blanket exemptions.

Liebaers found that, in this case, most of the information was already in the public domain. He said that the content appeared to be “quite anodyne” and that disclosure of the records would not prejudice any commercial interests, including that of the airline or the authority.

The records related to an alleged ‘go around’ by a Cayman Airways aircraft after its attempt to land was blocked by a United Airlines aircraft, which was still on the ground. Officials said at the time that its departure had been delayed, forcing the CAL flight to go around before being cleared for landing.

When an FOI request was made, the authority refused to release the report or the ATC recording transcript under section 21(1)(b) of the Freedom of Information Law, citing commercial interests and prejudice, but the information commissioner disagreed.

“The authority has not adequately addressed the likelihood of prejudice, although it was explicitly encouraged to do so by ICO staff in the course of the appeal process.” He said the CIAA did not actually even claim that disclosure “would” prejudice, but rather that it was “likely to ‘harm’ or ‘negatively affect’”, which, he explained was “lower than the threshold required for the exemption”.

He also dismissed the argument made by the CIAA that if the details were released, airlines and staff would be less likely to be honest in future safety investigations

“The authority states that disclosure of the responsive records would have a chilling effect on the authority’s ability to conduct safety investigations, and it claims that airlines and their staff, as well as the authority’s own staff, would be less likely to be honest and open for fear of reprisal or publication,” he wrote in his decision. “I do not believe this outcome is reasonably likely. Surely, safety is of paramount importance to the authority and the airlines alike, and I would hope that compliance with legal and international obligations relating to safety, and honest, straightforward cooperation with a regulator’s safety investigations are not as fragile as suggested by the authority,” he added.

The CIAA now has until 9 April to release the report and the recordings or make an application to the courts for a review of the commissioner’s decision.

Meanwhile, Liebaers also noted some procedural issues with the process of the request, in particular the fact that the authority had requested an extra 30 days without good reason. The request was made on 27 March last year but on 28 April the CIAA said it needed to invoke section 7(4) and extend the time required to provide a response, even though one report and a transcript were requested.

“Given that the extent of the records under review at that time consisted only of a single report and transcript, I do not consider that the authority demonstrated ‘reasonable cause for such extension’ as required under the law, and I consider their use of section 7(4) inappropriate in those circumstances,” he said.

He also criticised the CIAA for not conducting adequate search for documents that may have been relevant, which delayed the course of the appeal. “I do not consider that the authority made reasonable efforts to locate all relevant responsive records when it initially received the request, as required under regulation 6. This is especially so since the authority claimed that it required an extension of the standard 30-day timeline for its initial response.”

The information commissioner also warned the authority and all government entities about the use of blanket exemptions in its submissions to the ICO for the hearing The CIAA had said that it  “generally considers that documents and records produced in the course of safety and occurrence investigations are exempt” from the FOI law. But Leibaers said the blanket exemption of an entire category was not appropriate as exemptions should be applied in a proportionate manner and access may only be denied to parts of records that are actually exempt

“The former information commissioner and I have commented in a number of previous decisions upon the inappropriateness of a blanket application of exemptions,” he wrote, adding that while an authority can legitimately believe records are covered by the same exemption, a blanket approach is rarely the correct one.