Cayman Financial Review interviews Cayman’s first Information Commissioner – Jennifer Dilbert. MBE, JP

The Freedom of Information Law, 2007 came into effect on 5 January 2009. At the same time, Cayman’s first Information Commissioner, Jennifer Dilbert was appointed. Prior to this in 2007, a Freedom of Information Unit was set up by the Government’s Cabinet Office to ensure the effective implementation of the FOI Law

Why do we need freedom of information?

“The overarching purpose of access to information legislation… is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process and secondly, that politicians and bureaucrats remain accountable to the citizenry.” (Supreme Court of Canada)

But why in Cayman, and why now?

FOI Legislation is not new – Sweden enacted the world’s first Freedom of Information Act in 1766. Since then, over 75 developed and developing countries have passed similar legislation, with at least a further 35 actively considering it. With Cayman being a major player in the global economy, we need to utilise access to information to improve the workings of our Government, to make it more responsive, accountable, transparent and effective. If we are to maintain our place in the financial industry, and respond rapidly and effectively to the changing requirements in this industry, good governance is essential.

How does the process of requesting information work?

Details of how to make a request and the public’s rights to access can be found on the Freedom of information Unit’s website atwww.foi.gov.ky

Essentially, anyone can make a request for records under the FOI Law. The application should be made directly to the Information Manager of the Public Authority which the applicant expects to hold the record requested. If that authority does not hold the requested record it will transfer the request to the public authority which is likely to hold the record.

The Information Manager will make a decision as to the disclosure of the record, and will convey this decision to the application within tight time limits set out in the FOI Law. If the applicant is not satisfied with the decision of the Information Manager, an internal review can be requested, wherein a more senior member of the staff of the Public Authority will consider the request. If the applicant is still not satisfied, then an appeal to the Information Commissioner can be made. The ICO has set out Policies and Procedures for Appeals which can be found on the ICO website at www.infocomm.ky

How is this different than what existed before when asking a public authority for information?

FOI is now a statutory right. The FOI Law promotes open government by taking away the ability of a public authority to rely purely on its discretion as to what information to disclose and by substituting that discretion with a set of independent, uniform and enforceable rules that must be followed in responding to an applicant’s request for records. The FOI Law seeks to strike a balance between the public’s legitimate right to know and the need for public authorities to keep some information confidential. Questions of potential prejudice and public interest are factors taken into account in determining, for example, whether or not a record may be withheld from public scrutiny and treated as an exempt record within the meaning of the FOI Law.

Is Cayman prepared to meet the requirements of our FOI Law?

The FOI Unit has done a sterling job in overseeing the appointment and training of Information Managers in each public authority, and advising the public of their rights under the FOI Law. However, there are several serious shortcomings that need to be addressed to ensure that the principles of natural justice and fairness are applied, and that whatever the outcome of a particular request for information, both parties can be assured that their case was handled appropriately and within the parameters set out in the FOI Law.

What needs to be done?

First, the necessary attention and resources need to be applied to ensure compliance with the FOI Law. The ICO needs to be independent of Government and properly structured with clear reporting lines to the Legislative Assembly as set out in the FOI Law. The ICO must be adequately staffed to enable the Information Commissioner to:

(a) hear, investigate, and rule on appeals filed under this FOI Law;

(b)monitor and report on the compliance by public authorities with their obligation under this FOI Law;

(c) make recommendations for reform both of a general nature and directed at specific public bodies;

(d) refer to the appropriate authorities cases where it appears that a criminal offence has been committed;

(e) Publicise the requirements of this FOI Law and the rights of individuals under it.

Public authorities must be afforded the necessary resources to comply with the FOI Law. Many Information Managers have been given their new roles within the context of their existing, busy workloads. They are finding it difficult to cope with the additional work and training required for them to act as efficient information managers and to meet their obligations under the FOI Law. Second, there must be a political and bureaucratic willingness to embrace a culture of openness and pro-active disclosure. It is not good enough for Government to honour the FOI Law in principal, while limiting its potential in practice by not providing the infrastructure necessary to comply with the FOI Law.Third, there needs to be a culture change across the Cayman Islands. Government must no longer be seen to be a ‘black hole’ where no one knows what is going on. Full disclosure of information to the public about any government wrongdoing and other mistakes should ultimately generate appropriate corrective responses.

Are the necessary measures being taken by government to ensure successful implementation of the FOI Law?

The Government’s Implementation Plan called for the Information Commissioner to be appointed in July of 2008, thus allowing time for the ICO to be established, including the development of policies and procedures to deal with appeals and other areas of responsibility under the FOI Law, before the FOI Law came into effect. This did not take place, and as it transpired I was appointed on the same day as the FOI Law came into effect and had to deal with the establishment of a physical office, hiring and training of staff, and development of policies and procedures while at the same time process a growing number of appeals, promote public education, and monitor compliance with the FOI Law. The Information Commissioner’s First Quarter Report and Operational Plan can be found on the ICO website at www.infocomm.ky

However, this plan has had to be drastically amended as due to the Government moratorium on hiring new staff, as at the date of publishing, the Commissioner has not been given the approval to complete the essential staffing of the ICO. This highlights that it is imperative that the independence of the ICO be firmly established through the amendment of several existing FOI Laws, and the development of clear reporting lines to the Legislative Assembly, not to the Governor, Civil Service or Cabinet.At present, the ICO is focused on delivering a fair process for all appeals made to the Information Commissioner, who has developed Policies and Procedures for Appeals as referenced above.

Information Managers continue to be trained and have the additional resource of the Freedom of Information Unit, which continues to provide guidance and monitoring through the production of statistical reports etc, some of which can also be found on the FOI website.The new Leader of Government Business, Hon McKeeva Bush, has clearly stated his Government’s commitment to supporting the successful implementation of the FOI Law, and making any legislative changes required.With respect to a culture change, a part of the ICOs public outreach will be to educate the public as to what can be expected in terms of disclosure of information, and to challenge public authorities to provide information as a matter of course. The general public needs to fully understand the process for requesting information, and its rights under the FOI Law with respect to requesting an internal review of a decision and an appeal to the Information Commissioner. Records Management within Government is improving, and there is already more awareness of the need to be in compliance with the Codes of Practice on Records Management and Publishing Information.

Is the FOI Law being used?

Based on statistics from the Freedom of Information Unit – as at the end of April 2009 – 315 requests for information under the FOI Law have been submitted to 55 of the 88 Public Authorities. Of these, 228 have been closed and 87 remain in progress. (See Chart 1)

Have there been any appeals to the Information Commissioner?

As of 31 May 2009, the ICO has received 14 appeals, of which seven have been successfully mediated and closed, six are in mediation, and one has gone to a formal hearing.How does the Freedom of Information FOI Law affect the financial industry?On an administrative level, the pubic authorities that monitor and regulate the financial industry fall under the FOI Law. This means that there will be accountability and transparency in the way these agencies are run, adherence to publication of necessary information, and monitoring of their administrative records management, in compliance with the FOI Law. This public scrutiny and monitoring by the ICO will assist them in being more efficient and effective in carrying out their duties and thus better serving the financial industry.However, on an operational level, exemptions contained in the FOI Law, coupled with requirements of other FOI Laws, ensure that the vital confidentiality required by the financial industry with respect to client information and commercial interests is safeguarded.As an addendum, Data Protection Legislation normally accompanies FOI legislation, and this is likely to be introduced in Cayman in the near future. This legislation will have a more far reaching impact on the financial industry, as private institutions will have to comply with privacy and disclosure laws in dealing with personal information of their employees.

What is your aim as Information Commissioner?

As Cayman’s first Information Commissioner, I am dedicated to ensuring that this important initiative succeeds and that FOI and all the advantages it brings becomes a way of life for our people.