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In the public interest

The Information Commissioner, Mrs Jennifer Dilbert and her staff, have been generally conscientious in their efforts to ensure that the Freedom of Information Law is carried out in an effective manner and that the public’s access to information is rightfully upheld.

At least, we believe they have been doing a good job, and that they have been bold and forthright in their rulings when matters have been referred for review. We can cite two recent cases in point, which we believe, demonstrate their rigorous approach to safeguarding the rights of an FOI applicant.

In ICO hearing 27, issued this past January, the ICO ruled on the Public Service Pension Board’s action in withholding some records and redacted information, pertaining to an applicant’s pension benefits. The ICO supported the decision to withhold some records, such as memoranda from legal professionals to their clients consisting of legal advice, and ordered the disclosure of others.

In another, perhaps more controversial review, an applicant was refused access to documents relating to a complaint to His Excellency the Governor on Operation Tempura and the Governor’s response to the complaint. The ICO’s Decision 24 overturned the decision of the Governor’s Office that the records fall within the ambit of section 54 (1) and as such the FOI Law did not authorise the disclosure of the records. She overturned the decision of the Governor’s Office that the responsive records were exempt from disclosure under sections 17(b) (i), 23 (1) and/or 20 (1) (d) and ordered that the Governor’s Office disclose the records.

As we now know, the Governor has taken this matter to judicial review.

This week, we were made to contemplate on yet another far-reaching ICO review, this time relating to an application for records of the Cayman Islands government’s 2012 budget negotiations and correspondence on the same with the UK government and the Foreign and Commonwealth Office. The Governor’s Office refused the release of such records and this week, in Decision 28, the ICO upheld that decision.

The substantive issues for the refusal include maintaining some “private space” for both the local and UK governments to negotiate on such matters as the budget and promoting the continuation of frank exchanges between the parties in such negotiations. There was also the matter of the “public interest”, which, under the FOI regulations include the promotion of greater public understanding of the processes and decisions by public authorities, provide reasons for government decisions and facilitate public participation in decision making by government.

The ICO states in its ruling that the disclosure of the records requested “is not necessary to promote greater public understanding of the processes or decisions made by Government with respect to the budget negotiations with the UK Government, nor would disclosure provide reasons for decisions taken by Government.”

Reading through the decision, however, we are apt to be persuaded by the argument that the public interest test was given a much shorter shrift, than the need to maintain the inter-governmental “private space” in discussions relating to budget negotiations.

It is not that we don’t understand the need for such space and confidentiality and everything else that goes along with it.

And yes, while there was quite a bit of public information surrounding the budget process with the UK and FCO, we are not fully convinced that there was nothing else for the public to learn about the relationship between the UK and Cayman’s representatives, when such contentious issues come up.

There is quite often a presumption that the public interest is best served when certain information can be kept from the people, ironically in the name of doing what’s best for them.

Unfortunately, in such instances, the public interest then becomes narrowly defined and the interest of those acting on behalf of the people is given greater importance than that of the people itself.

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