QUARTERLY REPORT
Information Commissioner’s Office
2011/2012 FOURTH QUARTER REPORT 1 April – 30 June 2012
PURPOSE OF THIS DOCUMENT The Cayman Islands’ Freedom of Information Law, 2007 (“FOI Law”) came into effect on 5 January 2009. The objective of the FOI Law is to make Government more accountable by giving the general public the right to access records held by Government, and by requiring that public authorities follow a uniform set of rules when deciding whether or not to disclose information in response to an access request. The burden of proof is on the public authority to show that it acts in accordance with its legal obligations, including when it is withholding information from disclosure. The Law also requires public authorities to ensure that decisions and the reasons for those decisions are made public, and provides for the proactive disclosure of certain records. The purpose of this Report is to provide the Legislative Assembly and the public with an account of how this legislation is being administered, and to ensure ongoing transparency and accountability of the Information Commissioner’s Office (“ICO”) itself, in the discharge of its statutory responsibilities under the FOI Law. The ICO is a quasi-judicial body, generally responsible for hearing appeals, monitoring compliance, and promoting and enforcing the FOI Law. Under the FOI Law, the Information Commissioner may: (a) Hear, investigate and rule on appeals filed under the Law; (b) Monitor and report on the compliance by public authorities with their obligations under the Law; (c) Make recommendations for reform both of a general nature and directed at specific public authorities; (d) Refer to the appropriate authorities cases where it appears that a criminal offence has been committed; (e) Publicise the requirements of the Law and the right of individuals under it.
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GENERAL CONSIDERATIONS APPLICABLE TO ALL AREAS OF RESPONSIBILITY 1.
Independence of the Information Commissioner
The Information Commissioner is working along with the Auditor General and the Complaints Commissioner to address the issue of the independence of the three Offices that they head. The Attorney General’s Office has provided some assistance in this matter, specifically in respect to the existing provisions of the Public Service Management Law (PSML), the proposed amendments to the PSML, and options that might be available to establish, maintain, or further promote the independence of the three Offices. Jointly, the Auditor General, the Complaints Commissioner, and the Information Commissioner have requested that Cabinet amend the recent drafting instructions for the amendment of the Public Service Management Law and Personnel Regulations in order to remove any proposed changes which would seek to further extend the provisions of the PSML to the Office of the Auditor General, the Office of the Complaints Commissioner and the Information Commissioner’s Office. It is felt that, given that discussions with Government on the status of these offices under PSML is on-going, it would be premature to proceed with amendments at this point. The three Offices will be preparing a joint, comprehensive proposal for Government, setting out organizational and legislative changes that would enable the Offices to meet the required international levels of independence.
2.
Training
A staff training retreat was held in Cayman Brac on 11 May, in conjunction with other events including an Information Manager’s Seminar, as reported below. The training focused on exemptions that have been the subject of Hearings to date. Further Information Manager (“IM”) Seminars were held on 27 April, 11 and 31 May and 15 and 22 June 2012 and were attended as follows. IM Seminar XVII
IM Seminar XVIII
IM Seminar XIX
Economics & Statistics Office
Cadet Corps
Commissions Secretariat
Education Services Department
Department of Commerce
Department of Environmental Health
Financial Services Secretariat
Director of Public Prosecutions
Public Libraries
District Administration
Children & Youth Services (CAYS)
Planning Department
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Department of Sports
Department of Tourism Department of Vehicle & Equipment Services
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Computer Services Department
Sunrise Centre
Ministry of Education Portfolio of the Civil Service Recreation Parks & Cemeteries Unit
All 92 public authorities have now taken part in one or more of the ICO’s IM Seminars, and this concludes the first round of this Seminar Series. The IM seminars have developed into a very relevant training tool for the IMs, and the Commissioner now considers these to be an integral part of IM training, as required under the FOI Law. Following feedback from various IMs the next round of seminars will focus on issues relevant to selected invited IMs. It will therefore be imperative for IMs to attend the particular Seminar to which they are invited.
3.
Staffing
As at 30 June, 2012 staffing of the ICO was as follows: ▪ ▪ ▪ ▪ ▪ ▪
Information Commissioner – Jennifer Dilbert, MBE JP Deputy Information Commissioner– Jan Liebaers Senior Appeals and Policy Analyst – Vacant Appeals and Compliance Analyst – Clara Smith Operations Administrator / Registrar of Hearings – Nadira Lord Administrative and Finance Manager – Christina Smith
The post of Appeals and Policy Analyst remains vacant, but a request has been made to fund this post in the 2012/13 financial year. During the period, a Compensation Review of the ICO was carried out by Deloitte. This was a job evaluation and market pricing exercise to evaluate the competitiveness of the ICO in the local marketplace and the internal equity within the existing ICO compensation structure. The Review found that four of the ICO’s six positions fell below the minimum of the recommended salary band, and all six were below the mid-point of the recommended salary band. The Executive Summary of the Review can be found on the ICO website, and a full copy is available upon request from the ICO.
4.
Finances
The Information Commissioner’s July 2010 – June 2011 Annual Report was tabled in the Legislative Assembly on 4 April, 2012. Included in this Report were the audited accounts for the year ended June 2011. A copy of this Report can be found on the ICO website at www.infocomm.ky. A unaudited financial report for this quarter is attached at Appendix I. 2011/2012 Fourth Quarter Report April-June 2012
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5.
Data Protection
The Deputy Information Commissioner continued to represent the ICO at the regular meetings of the Data Protection Working Group. A draft Bill and accompanying documentation was completed in preparation for public consultations which were anticipated to commence in June, but had not yet started by the time of writing. The public consultations will allow input from interested business groups, community organizations and members of the general public. It is anticipated that the Data Protection Working Group will analyze the various comments and suggestions, and will then prepare a new draft Bill for presentation to Cabinet and the Legislative Assembly. On 11 June the Commissioner and the Deputy Commissioner attended the Deputy Governor’s weekly meeting with Chief Officers. The Deputy Commissioner gave a presentation on Data Protection to explain the basics to Chief Officers, and alert them to the fact that the consultation process would soon begin.
RESPONSIBILITY A: HEAR, INVESTIGATE AND RULE ON APPEALS FILED UNDER THE LAW
A.1
Develop and Implement Policies & Procedures
Appeals to the Information Commissioner continue to increase both in number and complexity. The failures of some public authorities to meet their legal obligations, as further explained in section B1 below, result too often in the ICO having to deal with procedural issues in the course of an appeal investigation or hearing. For instance, some public authorities do not conduct a proper search for all relevant records following a request until an appeal or hearing have commenced. This is unfair to the applicant, and unduly slows down the appeals process. The ICO’s internal guidelines often have to be amended to respond to the differing nature of appeals, and the ICO welcomes input from those involved in the appeals process to ensure that the process remains effective, user-friendly and fair to all parties.
A.2
Informal resolution of appeals
As a matter of policy, the ICO in the first instance seeks to resolve appeals informally, depending on the voluntary cooperation of both parties. This course of action has significant benefits and allows the ICO to apply its resources in an efficient and effective manner. During the period 1 April to 30 June 2012, following the extraordinarily busy previous quarter, five new appeal files were opened and eight were closed of which 4 by referral to the Registrar 2011/2012 Fourth Quarter Report April-June 2012
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of Hearings for a formal hearing before the Commissioner. The following is an update of the resolution of the four informally closed appeals:
Judicial Administration and Office of the Director of Public Prosecutions
An Applicant made an appeal for records relating to a motor vehicle accident in 2009 of which he was the victim, and for the subsequent court proceedings in which he gave evidence. The Applicant received a number of records from the Courts Administration, as well as his own witness statement from the ODPP. However, the ODPP partially withheld the other documents including the witness statement of the driver, taken at the time of the accident. The ICO referred the Applicant to the Courts for a transcript of the court proceedings, as this is the established manner of gaining access to this type of record. The ICO investigated the matter, resulting in the reduction of the redacted information. However, before the matter was resolved or progressed to a hearing, the ICO closed the appeal following an extended period of non-communication by the Applicant.
Royal Cayman Islands Police Service
An Applicant who was a former RCIPS employee made an appeal in relation to a request for their own personnel and discipline files, as well as various information relating to their dismissal. The RCIPS had disclosed most of the information to the Applicant without redaction, but the applicant believed that more information existed. The ICO investigated the matter, as a result of which further records were located and disclosed, both by the RCIPS and the Portfolio of Internal & External Affairs. However, the Applicant believed that still more records existed, while the RCIPS maintained that a thorough search had been conducted and that there were no further responsive records. Although there were some procedural concerns, in the circumstances the ICO decided that in this case it would not proceed to a hearing solely on the basis of the thoroughness of the search, and the appeal was closed.
Ministry of Finance
An Applicant made an appeal in relation to a request for two Internal Audit reports, one each for the Liquor Licensing Unit and the Public Sector Pensions Board (PSPB). The Ministry had provided redacted copies of the two reports to the Applicant, applying the exemptions in sections 23(1) (personal information) and 21(1)(d) (prejudice to a commercial interest). The ICO accepted the appeal and investigated the matter, as a result of which the Ministry decided to disclose all the remaining requested information.
Cayman Airways
An Applicant made a request relating to an incident involving a Cayman Airways jet in March 2012. During the verification of jurisdiction by the ICO, it was determined that no internal review had yet been conducted, and the case was referred back to the public authority for an 2011/2012 Fourth Quarter Report April-June 2012
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internal review of the matter. If the Applicant remains dissatisfied after conclusion of the internal review, this appeal file may be reopened.
The ICO regularly receives requests from applicants to assist with various FOI-related issues even before a request is appealed to the Commissioner. This may involve ensuring that an applicant receives a response from a public authority, or informing an applicant of their rights under the law. This quarter the ICO again assisted many members of the public with FOI related issues. As a result of the increasing numbers of such inquiries, the ICO is preparing to initiate a means of capturing these inquiries for future periodic reporting. A breakdown of the ICO appeal statistics can be found at Appendix II.
A.3
ICO Hearings
Hearings Commenced Two Hearings commenced during this reporting period:
Hearing 21–01212 Office of the Deputy Governor / Portfolio of the Civil Service
Hearing 22–00712 Cabinet Office
Hearing Decisions Issued
Decision: Hearing 20 – 00112 Public Service Pensions Board 7 May 2012 The Public Service Pensions Board deferred an Applicant access to “...a copy of the 1 January 2008 Actuarial Report completed on the Public Service Pensions funds …” The Information Commissioner overturned the decision of the Public Service Pensions Board to defer access to The Actuarial Valuation of the Public Service Pension Plan as of January 1, 2008, and required that the Public Service Pensions Board release the responsive record.
Release of Responsive Records
Decision: Hearing 20 – 00112 Public Service Pensions Board 7 May 2012: The responsive records were released on 14 May 2012.
Judicial Review No Judicial Review of any of the Commissioner’s Decisions has been sought to date.
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RESPONSIBILITY B: MONITOR AND REPORT ON THE COMPLIANCE BY PUBLIC AUTHORITIES WITH THEIR OBLIGATIONS UNDER FREEDOM OF INFORMATION LEGISLATION
B.1
Compliance and Compliance Reports
The ICO has noted the failure of some public authorities to meet their legal obligations in respect of properly responding to applications under the Law. In some instances public authorities have failed to properly identify and examine requested records before applying exemptions, and these tasks are only carried out when the ICO becomes involved (whether in an appeal or otherwise). This constitutes a breach of the Law, and results in unnecessarily complicated and lengthy appeals, and a heavier workload for the ICO, and, eventually, the public authority itself. This is also reflected in the increasing need for the ICO to deal with procedural issues in the course of an appeal investigation or hearing. Between 1 January and 31 March 2012, 118 Freedom of Information requests were logged by public authorities. This is a 39% decrease in requests over the previous period. Of the 118 requests received, 81 were closed during the same period. Requests received this period were received by 39 out of the 92 public authorities. The remaining 53 authorities did not log any FOI requests. As customary, compliance reports which provide details of requests made under the FOI Law from April through June 2012 will be recorded, analysed and included in next quarter’s report. As above, this Report gives data for the quarter from 1 January – 31 March, 2012.
B.2
Investigations
Section 44 Investigations None were initiated during the period. Own-initiative investigations Own Initiative Investigation 5 - Website Re-evaluation commenced this quarter, but due to pressures of a large number and complexity of appeals and hearings, this investigation has not been completed as planned.
B.3
Publication Schemes
The ICO continues to encourage public authorities to keep their publication schemes up to date and in the standard format that can be published at the end of the year. Public authorities are also reminded to use their websites to provide the required information on FOI to the public. RESPONSIBILITY C: MAKE RECOMMENDATIONS FOR REFORM BOTH OF A GENERAL NATURE AND DIRECTED AT SPECIFIC PUBLIC AUTHORITIES 2011/2012 Fourth Quarter Report April-June 2012
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C.1
Legislative Reform
Section 58 of the Freedom of Information Law, 2007 stipulates that the Law must be reviewed from time to time by the Legislative Assembly. A Committee of the whole Legislative Assembly, created on 30 June 2010 to review the FOI Law, has met and formed a Law Review Sub-Committee, chaired by the Attorney General. The Information Commissioner’s recommendations for the Law Review were submitted to this Committee in September 2010, and a position paper on the subject of and anonymity and fees was sent to the FOI Law Review Committee in January, 2011. These Reports can be found in the ICO website’s document library www.INFOCOMM.ky. The ICO has been informed that the report of the Law Review Sub-Committee is ready for submission to the Committee of the Whole House. RESPONSIBILITY D: REFER TO THE APPROPRIATE AUTHORITIES CASES WHERE IT APPEARS THAT A CRIMINAL OFFENCE HAS BEEN COMMITTED While the Commissioner continues to hope that her duties under this section will rarely present, unfortunately on at least two occasions, it appears that a public authority may have failed to identify records responsive to a request. The Commissioner reminds public authorities of section 55 of the FOI Law which states: 55. (1) A person commits an offence, if in relation to a record to which a right of access is conferred under this Law, he(a) alters or defaces; (b) blocks or erases; (c) destroys; or (d) conceals, the record with the intention of preventing its disclosure. (2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment. In addition, section 43(3) of the FOI Law states that in her decision on any appeal, the Commissioner may: (c) in cases of egregious or wilful failures to comply with an obligation under this Law, refer the matter to the appropriate disciplinary authority. The Commissioner will not hesitate to enforce these sections of the Law where necessary.
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RESPONSIBILITY E: PUBLICISE THE REQUIREMENTS OF THE LAW AND THE RIGHTS OF INDIVIDUALS UNDER IT
E.1
Outreach & Promotion
Planning and preparation has begun for this year’s Right to Know Week, which will as usual be centred around Right to Know Day on Friday 28 September. Promotional material and media promotions are being arranged, bearing in mind the very limited budget available for these activities. This quarter the ICO made a long overdue visit to Cayman Brac, where a tea and access clinic was held, as well as an Information Managers Seminar. Promotional and educational material was distributed throughout the Island. The following promotional and educational activities took place this quarter. April – June 2012 Educating Information Manager Training
Conferences/Training Courses Presentations to private sector Presentations to government
5 5 1 2
Communicating Articles in the Media Printed Matter distribution outlets Radio Interviews
17
ICON newsletters published Flyers/Posters designed Reports Published
1 2 2
Training Compliance Reports Data Protection Law Review
5
3 3
Publishing
Monitoring
Total
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1 1 1 49
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E.2
The ICO Website
During the quarter the ICO switched to new website editing software. While some restrictions still apply, the new software allows ICO staff to upload additional types of information and documents to the website, resulting in more timely updates. The public is invited to give their feedback on the ICO website or their experiences by emailing the ICO at info@infocomm.ky. As well, to subscribe to the ICO quarterly Newsletter ICON, Reports of the ICO, Hearing Decisions or Investigation Reports please email info@infocomm.ky.
Jennifer Dilbert Information Commissioner Cayman Islands 30 June 2012
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APPENDIX I April – June 2012 Financial Report (Unaudited)
Description
Annual Budget (2011/2012)
Jul 2011 – Jun 2012 Actual (KYD $)
Staffing
413,298.00
394,594.78
includes: salary, healthcare and pension contributions Accommodation
77,027.00
91,778.19
Training, Travel, Subsistence and Hospitality
6,000.00
11,738.83
Office Supplies, Printing and Stationery
4,925.00
4,709.81
Information Technology and Telecommunications
13,475.00
10,732.86
Specialist assistance, Legal Fees and Financial Charges
52,611.00
9,971.33
Communications and Public Relations includes: marketing, advertising and publishing
7,500.00
14,526.91
TOTAL
574,836.00
537,782.71
includes: rent, rates and services, janitorial, security and depreciation
Note: $52,000 was provided by the Legislative Assembly to the Office by means of a capital injection to cover expenses for July 2011, prior to the budget being approved.
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APPENDIX II The Information Commissioner’s Office Quarterly Appeal Statistics: 1 April 2012 – 30 June 2012
Files opened
5
Files closed (being opened this quarter)
1
Files closed (being opened in previous quarters)
8
Files successfully mediated
2
Files referred back to public authority/ No further action
2
Files in active mediation (at the end of the quarter)
7
Appeal files re-opened
0
Files sent to hearing before the Commissioner
4
Files in hearing before the Commissioner (at the end of the quarter)
2
Hearing Decisions issued by Commissioner
1
Investigation Decisions issued by Commissioner
0
REASONS FOR APPEALS OPENED IN THIS QUARTER Withheld - Full (fully withheld records from disclosure)
0
Withheld - Partial (partially withheld/REDACTED records from disclosure)
3
Deferred Disclosure (deferred disclosure to a later date)
0
Fees (wrongfully/unwarranted application of fees for disclosure)
0
Time Limits (failure to meet an obligation to respond to an applicant in a specific timeframe)
2
Transfer (decision to transfer request to another authority)
0
Refusal (refused on several grounds to respond to a request)
0
Personal Information (decision to release a third party's personal information
0
Reasonable Search (no reasonable search for records was conducted)
0
Duty (failure to comply with an obligation under the FOI Law.
0
Total
5
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