Freedom of Information Act on the Cayman Islands - Essay Example

Freedom of Information Act of 2007 In the new age of information that now characterizes the world, most countries have now guaranteed to their citizens the right to know about the inner workings of their own Government. Where the Caymen Islands is concerned, the Freedom of Information Act of 2007 was passed to ensure similar rights to the people of Caymen Islands to access information pertaining to the working of their Government. While the objective of this Act is to ensure that citizens and others are allowed access to information and government documents, its provisions as currently laid out do not necessarily achieve that purpose. As detailed further below, these provisions may not necessarily guarantee higher levels of access to the people of Caymen islands. The passage of the FOI 2007 arises against the trend of civil servants to keep Government business secret due to the fear of losing their jobs or a promotion due to putting out wrong information in public.(Fuller, 2008). The Freedom of Information Act of 2007 seeks to achieve a balance between the citizen’s right to know and the obligation of Government to preserve the confidentiality of certain kinds of information. The major objectives of the Law are set out under Part I, Section 4 are to give effect to the “fundamental principles underlying the system of constitutional democracy, namely (a)governmental accountability (b) transparency; and (c) public participation in national decision making” by allowing the public to participate in national decisions through granting them a “general right of access to records held by public authorities”, subject to certain exemptions.1 In essence, the Law seeks to grant citizens the legal right to inspect or copy official documents in the possession of Government authorities. Members of the public can also ask for their personal information to be changed and the Act allows citizens legal grounds to appeal if access to a record is either not granted or not granted in time. This Law specifically applies to Public authorities, which as defined under the Act, also includes government ministries, portfolios, statutory bodies and government companies2. The scope of information as contained in government records includes “information held in any form”3 and it applies to all government records, irrespective of the date when they may have been created4. One of the drawbacks in the law however, is the failure to adequately define what exactly constitutes “public interest” or “access”. These terms are not defined at the outset in Part I, Section 2 of the Act. Section 26(2) of the Act states that “public interest shall be defined in regulations made under this Law”, but this has not been done, although it is the most significant aspect related to access to a record. On the other hand, it may be noted that Part VI of the Act deals entirely with the “Information Commissioner” also defined in the early part of the Act, although it is not as significant as providing for a definition in the law of what constitutes public interest. In the absence of a specific definition of the two terms, it becomes difficult for public officials to be able to draw a clear line between the kinds of documents for which access must be permitted and those for which it must not. For example, a failure to define the term access could cause confusion, is the citizen to be allowed to merely look at the records or to access them electronically, or to request copies and/or take photographs of documents? How exactly is public interest defined, and what are the circumstances under which release of confidential documents can be said to fall within the sphere of public interest? The Commonwealth Human Rights Initiative has pointed out that in the FOI 2007, the current definition of terms such as “information” and “public authority” are inadequate. The CHRI contends that the definition of information in the Act should be broadened to include all the various kinds of information, including documents, memos, emails, file notings and various other forms of information. Similarly, the definition of public authority should also be expanded to include all the arms of government and including those organizations controlled directly or indirectly by Government. The CHRI also notes that no definition of access has been provided under the Act. The Act could be improved by including specific definitions for these terms as well, just as it has been done for other terms like “exempt record”, “exempt matter”, “foreign Government” etc. Under Part II, Section 6(1), the Act states “every person shall have a right to obtain access to a record other than an exempt record.” This implies a blanket requirement on officials, to automatically allow anyone to access any record. Sections 6(5) and Section 26 of the Act have also provided for access to a record which is exempt. Furthermore, an applicant requesting access to a record is “not required to give any reason for requesting access to that record.”5 All of these imply blanket access is to be provided. But this has been qualified as follows: If the factors favoring disclosure are equal to the factors favoring non disclosure, then on balance the information may be released if it is in the public interest despite any harm that may be caused.6 But the Act does not adequately define what specifically public interest is, therefore, there are no clear guidelines that are established under the Law, whereby government officials can make the distinction between when the applicant’s right to access can be limited on the grounds that it is not in the public interest. Part III of the Act specifies some of the official records that would be exempt from the right to access, such as those which would “prejudice security, defense”7, are related to law enforcement or are subject to legal privilege, etc. Without clearly specifying public interest, it becomes difficult to determine when Sections 6(5) and Sections 26 may apply in the case of exempt records, so that the balance of information can help determine when members of the public must be granted access to information falling under the exempt categories. The provisions of this Act also arise in conflict with the Confidential Relationships Preservation law of 1976. While the Freedom of Information Act is intended to ensure access to information for ordinary citizens, the Confidential Relationships Preservation Law contraindicates such divulging of information on the grounds that it is of a confidential nature. Section 3(2) of the latter Act sets out the persons to and by whom confidential information may legally be disclosed and ordinary citizens are not included within the scope of such individuals. As a result, it may be argued that all government information, which is of a confidential nature, falls under the category of information that cannot be disclosed. According to Section 5(1) (b) of the CRLA, a person who has confidential information in his or her possession and divulges it “is guilty of an offence and liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.” Therefore, there is a conflict posed between the public’s right to access to government information as opposed to the requirements under this Act for information to be kept private. In view of the prior existence of the provisions of the CPRL and the confidentiality requirements, a government official is likely to be placed in a situation where he or she may be afraid of the possible consequences arising out of the application of Section 5(1) (b) of the CRPL and may choose not to divulge information as required under the FOI 2007. This aspect has been addressed in subsequent exemptions from the confidentiality duty which are found in miscellaneous statutes that have been passed after the CPRL became law. Some exemptions have been set out in the revised CPRL to the Section 5 offences pertaining to the seeking of or divulging of confidential information. This exemption relates to information that can be divulged when such disclosure may be required if it is to be “in accordance with this or any other law”.8 Other exemptions that have been set out under other statutory provisions which are implemented specifically to override the confidentiality provisions are for the purpose of combating certain offences such as money laundering and terrorism. In the case of money laundering, the provisions of the Proceeds of Criminal Conduct Law9 requires statutory disclosures of information to be made in instances where there are suspicions of money laundering, despite the confidentiality provisions and the threat of punitive action under the Act. Similarly, where the issue of terrorism is concerned, the Terrorism (United Nations measures) (Overseas Territories 2001)10 requires disclosures to be made, even on confidential financial information when there is suspicion that such funds are being diverted to finance terrorist activities. In both these instances, the overriding of the confidentiality provisions of the CPRL allow disclosure to information. It is significant to note that the Freedom of Information Act however, appears to reinforce the provisions of the CLRA, by categorizing as “exempt from disclosure” those records which “are not liable to disclosure under the Confidential relationships (Preservation) Law (1995 Revision).11 This creates ambiguity and inconsistency within the law itself. On the one hand, the earlier section on access appears to imply blanket access, clarifying that in the balance between disclosure and non disclosure of official documents, non disclosure is favored but can be overridden in the public interest. But Part III, Section 18 (2) of the Act states exactly the opposite, conveying the impression that a violation of the CRLA may not be tolerated, even if it is in the public interest. Thus, in practice, the Act may not be able to achieve its objective of ensuring the right of access of the public to official documents. It appears that in the same vein as other statutory provisions which have sought to override some of the stringent confidentiality provisions of the CLRA, the FOI 2007 has also sought to achieve the same objective and allow members of the public to access information on government actions and documents, provided such information does not fall under the exempt category. But in this context, the question of how well such access will be allowed in actual practice still poses some issues, due to the inherent ambiguity and contradiction in the Act as detailed above. For instance, under Part III of the Freedom of Information Act, there is such a long list of records that are to be exempt from the requirement of access that it leaves very little where the provisions of the law on access can actually operate. This list also includes all records relating to the law enforcement process12, records relating to the process of government deliberations13, records relating to heritage sites14 and commercial interests15 among many other exemptions. Furthermore, the requirement that documents not liable for disclosure under the CLRA also be held back from disclosure means that officials are unlikely to permit access out of fear that they may be in contravention of the law. This would only reinforce the natural tendency of Government officials to be secretive and hold back official documents from access to protect their positions or jobs. The scope of the law also extends to requiring public authorities to make the best efforts in arriving at decisions and to ensure that the reasons for such decisions by Government are made public. Here too, the provisions of the law appear to contradict themselves. While requiring the reasons for Government decisions to be made public, which would also mean that the content of such discussions to reach those decisions must be made public, the Act nevertheless classes the process of government deliberations under the exempt category16. Therefore, government deliberations are not required to be made available for access, but without such access, how can the rights of citizens to access information relating to such decisions of government be ensured? The question of how well this Act will actually allow access is demonstrated in the views of FOI Unit Coordinator Carole Excell who has pointed out one of the difficulties, i.e, how are the minutes of Government meetings to be formatted so that the subject of Government appointed board meetings can be discussed, while withholding details of matters not in the public interest, such as personnel issues or matters relating to security (www.humanrightsinitiative.org). Thus, in practice, actually implementing the provisions contained in the Freedom of Information Act of 2007 may not be simple and the net result of this could be that Caymanians may not have access to information to the degree that is promised under the Act of 2007. Another aspect that must be pointed out is that in May 2008, Government Information officials conducted two focus groups to solicit opinion from the media and members of the general public on the Freedom of Information Law of 2007. This law will allow anyone, from anywhere in the world, to request access to information being maintained by the Government of Caymen islands, or government companies. But as Fuller(2008) points out, the findings from this survey of focus groups suggest that neither the media nor the public are very confident that the law will be successfully implemented as intended. According to the report of the Government information officials from the focus groups, “The real danger for freedom of Information is that the civil service is not ready and/or don’t have the resources to successfully implement the law, and that the public might have unattainable expectations causing them to lose interest in FOI.”(Fuller, 2008). The general opinion expressed among the participants in the focus groups was that the culture of secrecy has permeated the Caymen Islands Civil Service for far too long and this would be difficult to overcome, in successfully implementing the law. In an exhaustive analysis of the bill leading up to the enactment of the FOI 2007, the Commonwealth Human Rights Initiative has also pointed out several other anomalies in the Act, which may result in the FOI 2007 not adequately serving the requirement of access as specified under it. The CHRI had suggested recommendations to refine the Act such that it allows for maximum disclosure with minimum exceptions. The CHRI also recommends that simple and inexpensive, use friendly access procedures be introduced, with independent appeals allowed, with effective monitoring and promotion of access. One of the deficiencies of the Act as pointed out by the CHRI is in the endowment of the Governor in cabinet with the power to amend the Act and refine its scope. This may noted in Part I of the Act, especially under Section 3. The CHRI contends that this amounts to an interference of the executive branch of Government with its legislative arm. Since it is the legislature that is endowed with the authority to make and pass laws, allowing the executive as represented by the Governor, to refine and adapt the law is not in the interests of the people, in effect, it means that the elected representatives of the people do not have sole jurisdiction over the passage of the law because the executive can contravene the wishes of the people through its executive function. As a result, the FOI 2007 passed by the legislature to ensure access to information by Caymenians, can be modified by the executive to restrict this function and this could also restrict the access to information by Caymenians. This is a relevant recommendation and it could be argued that in the failure to specify all the forms of information that will be included under the scope of the Act, it leaves room for misinterpretation of which specific categories of information can be included within the scope of access required under the Act. When there is uncertainty on such matters, as well as on whether or not information on exempt records can be allowed to be accessed under the provisions of Section 6(5) and Section 26, the outcome that results is that the levels of actual access for Caymenians will be much reduced. Government officials, when faced with such uncertainties, are likely to make the choice to restrict the information, which in turn would compromise the rights to access of the people of Caymen Islands. As also pointed out in the CHRI’s analysis, the definitions of information and documents as set out under the Act may only serve to limit access further, because officials could abuse such provisions to restrict information access to citizens. Another deficiency in the Act, appears under Part VI of the Act, where it is proposed that an Information Commissioner be appointed to ensure that the provisions of the Act are implemented. The Information Commissioner is to be appointed by the Governor. In view of the arguments that have been proposed earlier, the appointment of a Commissioner who is himself a civil servant, to enforce the provisions of the Act, is not likely to serve the best interests of the purpose for which this Act was formulated. Since there is a history of secrecy by civil servants in the matter of release of Government information because they fear they may be dismissed or denied a promotion, it appears likely that appointing another civil servant to oversee the implementation of the Act will only be a counter productive measure. On the basis of the above, it may thus be concluded that while the intent of the FOI 2007 appears to be good in ensuring access to information to the people of Caymen Islands, the actual provisions may not necessarily achieve this objective in practice. The most significant difficulty that arises in actual practice and implementation of the Act is the prevailing mentality and attitude of civil servants, who have traditionally tended to be secretive about matters pertaining to Government affairs. This may impede the levels to which actual access may be granted. The appointment of a Commissioner, another civil servant, by the Governor who is yet another civil servant, would further propagate the mentality of civil servants and their secrecy and hinder access by promotion of the culture of secrecy rather than openness. In addition, the definitions of various terms such as information, documents and public bodies as provided in the Act, are not comprehensive enough and allow scope for abuse by officials in interpreting the provisions of the Act. Therefore, the end result could be that officials restrict access to documents and information, replying on the indeterminate and unclear definitions stated in the Act. The levels of access to the people of Caymen islands may also be restricted in actual practice due to the mixing up of legislative functions with those of the executive. The Act demonstrates the deficiency of allowing the executive branch of Government, i.e, the Governor, to amend or modify the Act. This is an encroachment into the dominion of the legislative arm of Government and represents a curtailment of the power of the people in implementing the FOI 2007. This is likely to further impede access to information for the people because it allows the executive branch to determine how and in what manner the provisions of the Act will be implemented, as well as the extent to which it will be modified or adapted. Lastly, the Act also rises in conflict with the confidentiality provisions of the CRPL 1976, which is likely to create further ambiguity and confusion among civil servants on the degree to which information is to be allowed to be accessed. Additionally, the Act also creates logistical difficulties in its implementation. The manner in which information is to be classified and delineated, according to that which is to be made available for public access versus that which is to be kept secret is yet to be fully worked out. In the interest of protecting the country’s security and safety as well as the privacy of its citizens, not all information can be divulged; there must be limits placed on what can and cannot be revealed. But it is the very lack of clarity in clear establishment of boundaries on such issues in the Act that is likely to create confusion and in practice, restrict access to information for the people of Caymen islands. On an overall basis, therefore, it appears that the Act may serve to improve overall access to information for the people of Caymen islands, but the levels of access are still likely to be restricted, unless the scope of the Act and definitions contained within it are further refined. Moreover, it also appears that the job of actual implementation of the Act must be delegated to individuals/bodies who are not government officials or civil servants so that a fresh new perspective can be introduced. References: * CHRI (Commonwealth Human Rights Initiative) : Analysis of the draft Freedom of Information Bill 2005 * Fuller, Brent, 2008. “Public, Press skeptical about FOI”, Caymanian Compass, July 13, 2008. http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/cayman_islands/sceptical_about_foi_caycompass_13jul08.pdf >, Accessed August 13, 2008 * Fuller, Brent, 2008. “Salaries, meeting Minutes to be open”, Caymanian Compass, http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/cayman_islands/salaries_&_minutes_caycompass_13jul08.pdf, Accessed August 14, 2008 * The Freedom of Information Act of 2007 of the Caymen Islands. ESSAY PLAN The objective of this essay is to determine whether or not the Freedom of Information Act has granted the people of Caymen islands sufficient access to information. The essay will present arguments and analysis that will be directed towards this objective. The first part of this essay will provide a brief explanation of the major provisions of the Act and what it seeks to achieve and assess its impact in the context of the confidentiality requirements imposed by the Confidential Relationships Preservation law of 1976. This Act makes it a criminal offence to divulge information and its impact on limiting access under the FOI will be assessed. This essay will also assess how other recent statutory provisions have been implemented to counteract the confidentiality requirements of the CRPL. This process of analysis will also serve to highlight any deficiencies that may exist, which may inhibit access of information. The next part of the essay will assess any deficiencies in the FOI 2007 and how these deficiencies may impact upon the levels of information that the people of Caymen Islands can access. The difficulties that are likely to be posed in actual implementation of the Act will also be examined. On the basis of the findings and analysis, a conclusion will be reached on whether or not the FOI 2007 is likely to improve access of information to the people of Caymen islands. Read More