07 June 2019 | News from the O

PRESS RELEASE

The Ombudsman issues Hearing Decision 70, involving the Ministry of Health, Environment, Culture and Housing 

An Applicant requested details of any payment/settlement with the Director of Environmental Health in relation to his resignation/retirement from the civil service, including salary, pension, healthcare and any other financial settlement. 

The Ombudsman agreed with the Applicant that the requested record involves the expenditure of public funds and that there is a legitimate public interest in the expenditure of public funds. She also agreed that a public authority should not be allowed to side step the FOI Law by inserting confidentiality clauses in agreements.  However, she found that the FOI Law does not impose a public interest test on actionable breaches of contract.  The exemption for actionable breach of confidence in section 17 is absolute.

The Ombudsman examined the “Deed of Compromise and Release” and identified a confidentiality clause in the agreement.  The Ombudsman found that the information in the agreement was confidential and the result of private negotiations between the parties and only known to those parties.  The information was shared in circumstances importing an obligation of confidentiality which was expressly stated in the confidentiality clause, thereby creating a strong expectation of confidentiality.   Disclosure of the information in the agreement by either party would open them to a claim by the other party that it was unauthorized, given the explicit statement in the confidentiality clause.

The Ombudsman found that the disclosure of the record would constitute an actionable breach of confidence, and the exemption in section 17(b)(i) was engaged.

The Ombudsman said: “Public authorities should carefully consider whether confidentiality is necessary and appropriate before agreeing to sign an agreement containing a confidentiality clause, and should not use such clauses unless absolutely necessary, such as may be the case in the course of litigation.”

The decision can be found at www.ombudsman.ky/decisions 

03 May 2019 | News from the O

PRESS RELEASE

Ombudsman publishes summaries of selected cases and 2018 Year in Review 

The Office of the Ombudsman has added a new section to their website. Summaries of selected cases can be found under the “Outcomes” tab at Ombudsman.ky. These summaries provide insight into specific cases dealt with by the Ombudsman and include details about the resolution of those cases. Selected cases from 2018 have already been posted. The cases include complaints about the police and government as well as freedom of information appeals and whistleblower disclosures.

Year end statistics for 2018, as well as selected case summaries, are also available at https://ombudsman.ky/images/pdf//Ombudsman-Year-in-Review-2018.pdf. The Office

  • answered 229 enquiries;
  • carried forward 17 cases from 2017 (5 Maladministration Complaints, 12 FOI Appeals)
  • opened 230 cases (59 Maladministration Complaints, 143 Police Complaints, 23 FOI Appeals and 5 Whistleblower Disclosures);
  • closed 155 cases (55 Maladministration, 76 Police Complaints, 20 FOI Appeals and 4 Whistleblower Disclsoures); and
  • 92 cases were carried forward to 2019.

22 February 2019 | News from the O

PRESS RELEASE

The Ombudsman issues Hearing Decision 61, involving the Department of Immigration/WORC

An applicant made four separate requests under the Freedom of Information Law (2018 Revision) to the Department of Immigration for records relating to various topics, including policies, procedures and guidelines on the handling of applications for permanent residency. No initial response was given, and no internal review was conducted.

During the appeal various records were disclosed, including policies relating to applications for permanent residency. The Department advised that these policies were not in use.  The Applicant asked whether there were any policies that were in use relating to applications for permanent residency but did not receive a response. 

The Ombudsman, Sandy Hermiston, found that the Department failed to respond to the requests within the time limits established in the FOI Law. The Ombudsman also found that the Department failed to indicate whether it held the records requested by the Applicant. As well, the Department also failed to publish “records used in making decisions” as required by the FOI Law.

The Ombudsman directed the Department, now known as Workforce Opportunities and Residency Cayman (WORC), to provide a full answer to the Applicant, and publish its guiding documents related to the making of decisions.

The Ombudsman said: “This appeal is a good reminder that the law must be adhered to, even when public authorities are occupied with other matters.”

The decision can be found at www.ombudsman.ky/decisions 

11 February 2019 | News from the O

PRESS RELEASE

The Ombudsman issues Hearing Decision 66, involving the Department of Labour and Pensions 

An applicant requested a variety of records from the Department of Labour and Pensions, relating to amendments made to a pension plan trust deed in 2016 and 2017.

The Department referred the bulk of the request to the pension plan administrator who disclosed a significant amount of information to the applicant (who is a member of the pension plan), as required under the National Pensions Law and Regulations. The Department refused access to communications with their legal advisors under section 17(1)(a) of the Freedom of Information Law (2015 Revision) (FOI Law), and internal communications under section 20(1)(d).

The Ombudsman confirmed that the legal advice is privileged and exempted.  However, the internal communications were inconsequential and/or repeated information already known to the Applicant.  Therefore, their disclosure would not prejudice the effective conduct of public affairs, as claimed by the Department.

A small part of the request remained unanswered, and the Ombudsman directed the Department to provide a response to the Applicant within 10 days.

The Ombudsman also recommended that the Department record internal discussions, and other business and affairs, more fully in the future.

The decision can be found at www.ombudsman.ky/decisions

03 December 2018 | News from the O

PRESS RELEASE

The commencement of the Data Protection Law, 2017, has been postponed until September 30, 2019

Following representations from the Cayman Islands financial services industry, Cabinet has postponed the start date for the Data Protection Law, 2017 (DPL). The DPL, which was scheduled to commence January 29, 2019, is now set to commence September 30, 2019.

The official media release by the Cayman Islands Government may be viewed here as a PDF.

 

30 November 2018 | News from the O

PRESS RELEASE

The Ombudsman issues Hearing Decision 65, involving the Ministry of District Administration, Tourism and Transport 

An Applicant requested information under the Freedom of Information Law (2018 Revision) (FOI Law) about taxi operators such as the number of operators, how many are also employed by the Cayman Islands Government (how many are employed by the Royal Cayman Islands Police Service and Her Majesty’s Prison Service) and how many are Caymanian/status holders.

The Ministry of District Administration, Tourism and Transport (DATT), whose Information Manager handles requests under the FOI Law for the Public Transportation Unit (PTU), argued that while the PTU holds records which may be responsive, the PTU does not keep statistics on the occupation or the place of birth of the operators. The Ministry argued that retrieving the responsive records would constitute an unreasonable diversion of resources under section 9(c) of the FOI Law.

The Ombudsman concluded that the FOI Law does not require the creation of new records such as the requested statistics. She also concluded that providing redacted copies of the application forms and supporting documentation would be excessively costly, particularly in terms of the time required to adequately redact the records and would therefore unreasonably divert the resources of the Ministry and PTU under section 9(c).      

The Ministry informed the Ombudsman that PTU intends to update its electronic system to include relevant data on public transportation operators and produce related statistics in the future.  The Ombudsman commended the Ministry/PTU for agreeing to create a record containing statistics which would be expected to be accomplished in the ordinary course of their business going forward.

No further action is required in response to this request on the part of the Ministry or PTU.  However, the Ombudsman did flag the Ministry for an audit of its information handling practices.

The decision can be found at www.ombudsman.ky/decisions.

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