Archive | November, 2011

Cayman’s Freedom of Information Law sets Bahamas precedent

By: Larry Smith

GEORGE TOWN, the Cayman Islands — The political status of this tiny British Overseas Territory south of Cuba, which enjoys one of the world’s highest standards of living, is often described by local intellectuals as “voluntary colonialism”.

As late as the 1950s, the Caymanos – to use an earlier name – were known as “the islands that time forgot”. But today they are home to a dazzling array of high-end tourist and financial infrastructure, populated by a cosmopolitan and largely affluent workforce of 36,000 – more than half of which is from other countries.

Grand Cayman has managed to preserve its position as a top financial centre in the face of a crackdown on international money laundering and tax evasion, as well as the recessionary impact of the global credit crisis. And tourism grew by more than 5 per cent last year, for a total of 1.9 million visitors. In fact, the island is buzzing with activity.

The Cayman islands are no longer a backwater. Despite being subject to British colonial rule (and occasionally whining about it), Caymanians are way ahead of Bahamians in terms of holding their government to account. In addition to a national ombudsman and an independent auditor-general, the legislature unanimously approved a freedom of information law in 2007.

That law was formulated over a period of years by a Cabinet Office working group which looked at similar legislation enacted by Britain, Canada and other West Indian islands. A 16-member steering committee was formed after the law was passed to guide the whole project to completion. And a separate implementation committee was appointed, headed by an experienced FOI coordinator from Jamaica who was responsible for developing and delivering training, raising awareness, and formulating policies and procedures.

The Caymanian FOI law took effect in January 2009, and by all accounts it has had a big impact on the way government authorities here interact with the press and with the community in general.

Our Freedom of Information Bill – tabled in the House by Prime Minister Hubert Ingraham a few weeks ago – is almost a verbatim copy of the Caymanian law, so I thought it would be useful to visit Grand Cayman and meet with the Information Commissioner, Jennifer Dilbert, and her deputy, Jan Liebaers. Dilbert was formerly the Cayman government representative in London, while Libaers is a former deputy director of the National Archive.

From their second floor office in Elizabethan Square, a short stroll from George Town’s spic and span cruise terminal (which is about to undergo a multi-million-dollar Chinese makeover), Dilbert and Liebaers have shepherded about 1800 freedom of information requests over the past two and a half years, 50 per cent of which were granted in full or in part.

The public authorities involved have included the Tourism, Immigration and Customs Departments, the Police, Cabinet Office, Legal Affairs, Lands & Surveys, Planning Department and the Water Board. But most requests have been aimed at the Police, and the Immigration or Legal Affairs Departments.

According to Liebaers, public reaction to the work of the Information Commissioner’s Office has been positive. “Together with the complaints commissioner (ombudsman) and the auditor-general we provide an enormously important counterbalance to the inertia of government,” he told me. ” Some 91 public authorities are covered by the FOI law.”

As the Caymanian Compass newspaper recently wrote, “More information is now available to the public about the operation and responsibilities of government agencies than has ever been available in the past.”

In fact, since the advent of the FOI law, many public boards and commissions in the Cayman Islands have made it standard practice to release meeting minutes on their websites – something that is unheard of in the Bahamas.

As you might expect, the most frequent requests have come from the press, or from a handful of activists and lawyers. And most relate to government spending – such as contracts, travel expenses or remuneration. But they have also focused on recruitment processes, statistical data, meeting minutes, and personal information.

The Caymanian FOI law was a campaign promise by the former Peoples Progressive Movement government led by Kurt Tibbets, although the then opposition United Democratic Party voted for it too. But after the UDP won the 2009 election, Premier Mckeever Bush has sometimes appeared less than happy with it.

At a press conference last year, for example, Bush lashed out at some elements of the media and the FOI law in general, threatening to impose a six-figure licence fee on media outlets. The outburst was sparked by a freedom of information request for his travel records.

“The FOI law, while purporting to ensure transparency and accountability, costs the country a lot,” Bush said, “especially as it ties up civil servants who are required to respond to requests which can literally come from Mickey Mouse (a reference to the fact that requests can be made anonymously).”

The Information Commissioner’s Office annual budget is a little more than $600,000, and over the past two and a half years it has processed 65 appeals to requests for information that were denied. Fifteen appeals went to a formal hearing, of which seven were decided in favour of the public authority and seven in favour of the applicant, with one case withdrawn.

These decisions have not yet led to a judicial review, but Liebaers told me the Cabinet almost took one FOI case to court last year. That decision involved a request for transcripts of meetings between Caymanian and British representatives who were discussing constitutional changes.

The changes, which took effect in 2009, updated the Cayman constitution, creating an office of premier for the first time, and devolving more power from the British governor to a reogranized Cabinet. A bill of rights was also drafted, and will take effect next year.

“The Cabinet refused to release the meeting transcripts on the basis that they were exempt because they were confidential and disclosure would harm international relations, but the UK government had no objection at all and they were released,” Liebaers said.

“Often it’s not what’s contained in records that make them the subject of requests, but the fact that they are being withheld in the first place, which makes people suspicious. Many civil servants have an instinctive desire to keep things closed.”

For example, the Cayman government’s recent cancellation of an agreement with GLF Construction of Miami to expand George Town’s cruise port, in favour of a new contract with China Harbour Engineering, has spawned numerous conspiracy theories.

Grand Cayman has no real harbour, so cruise ships anchor offshore and ferry passengers to town – the way it used to be done here. The Chinese will build new berths for the largest liners, and then operate the port for 49 years, but the Information Commissioner is currently reviewing the Port Authority’s refusal to release documents on the controversial contract switch.

“We are not WikiLeaks,” Liebaers said. “Everything has to be balanced, but the government needs to be held accountable. All of us in the ICO believe in what we are doing, and making the law effective depends a lot on our office.” The personality and reputation of the information commissioner also contributes to the success of the legislation, he said.

FOI  requests can be e-mailed or hand-delivered to the relevant public body, and pseudonyms can be used to protect an applicant’s identity. Requests should be acknowledged within 10 days and a decision communicated within 30 days. If no response is received, or if the applicant is unhappy with the response, they can refer the matter to the Information Commissioner.

“When an appeal reaches our office we first try to mediate with the relevant public authority, which is less labour intensive,” Liebaers said. “Of the 65 appeals so far, some 19 have gone to full hearings and in about half of those cases we ordered the release of the records and it has gone very smoothly.”

The Bahamas legislation – like the Caymanian law – gives a general right of access to all persons, stipulates a public interest test for most exemptions, and establishes the post of information commissioner for enforcement. The commissioner will be appointed to a five-year term by the governor-general in an “open process” and be responsible to parliament.

The bill also protects whistleblowers who publish information on illicit activities, but will not apply to the courts, the uniformed services or financial supervision agencies “in respect of their strategic or operational intelligence gathering.”

Records will be exempt from disclosure if the disclosure would harm the foreign relations of The Bahamas or reveal other confidential information of Cabinet; trade secrets, and in other specified circumstances

This groundbreaking legislation for the Bahamas comes 30 years after Australia passed its FOI Act, 17 years after Belize, 10 years after Trinidad, eight years after Jamaica, six years after the United Kingdom, and three years after the Cayman Islands.

Once passed, the legislation will be brought into effect by the middle of next year, binding any future government. So we are late again, but potentially a big step closer to delivering more transparency and accountability in public affairs.

The keys to making this law work will be the choice of information commissioner, the depth of the commissioner’s implementation plan, the training of public officers to support the law’s provisions, as well as how savvy the media will be in taking advantage of the law’s provisions.

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