Ombudsman Issues Hearing Decision 74
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PRESS RELEASE |
The Ombudsman issues Hearing Decision 74, involving the Ministry of District Administration, Tourism and Transport
An applicant made a request for access under the Freedom of Information Law (FOI Law) to two letters of intent between the government and two cruise lines in relation to a procurement exercise for a cruise berthing facility in George Town.
The Ministry of District Administration, Tourism and Transport argued that the procurement process is still ongoing, and disclosure would prejudice the commercial interests of the cruise lines and the Cayman Islands government (section 21(1)(b)) of the FOI Law, the effective conduct of public affairs (section 20(1)(d)) and would constitute an actionable breach of confidence (section 17(b)(i)).
The Ombudsman considered whether the letters of intent were exempted and found that in accordance with section 21(1)(b) that it would prejudice the commercial interests of the parties and that it would not be in the public interest to disclose the responsive records while the negotiations relating to cruise berthing continue.
The Ombudsman appreciates the public’s concern about this particular project and urges the Ministry to ensure the process is as transparent as possible. However, the FOI Law exempts these types of records from disclosure while the procurement process remains ongoing.
The Ministry has assured the Ombudsman that there will be further disclosure once the process is complete. In the event the Ministry fails to make further disclosures, the Freedom of Information process is available to the Applicant.
The decision can be found here
Ombudsman Issues Hearing Decision 72
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PRESS RELEASE |
The Ombudsman issues Hearing Decision 72, involving the Ministry of Commerce, Planning and Investment
Two applicants made a request under the Freedom of Information Law (2018 Revision) for an agreement between the Ministry of Commerce, Planning and Investment and Tech City, a private company.
The Ministry disclosed most of the agreement, but the redactions of some parts were disputed by the applicants.
The Ombudsman reviewed the matter and found that certain parts of the agreement were properly exempted under section 21 because they contained information with a commercial value, or information concerning the commercial interests of a person, the value of which would be destroyed or diminished if disclosed.
The Ombudsman found that sections 17(b)(i) and 20(1)(d) were not engaged and required that the Ministry disclose the remainder of the agreement.
The decision can be found here
Right to Know Day 2019
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PRESS RELEASE |
Ombudsman celebrates Right to Know Day 2019 and releases FOI Statistics 2018
The Office of the Ombudsman has released the 2018 statistical report on Freedom of Information (FOI) in the Cayman Islands Government.
This year we celebrate the 10th anniversary of the Freedom of Information Law (FOI Law) which came into force in January 2009.
The report highlights the use of FOI across the Public Sector and compares the results for 2018 with trends in the previous 10 years in such areas as the overall number of requests, response times and outcomes of FOI requests.
This report complements two other reports, the Annual Report for 2018 on the activities of the Office of the Ombudsman, and the statistical report pursuant to section 40 of the FOI Law, both of which are expected to be tabled in the Legislative Assembly shortly.
The FOI Law promotes openness by creating a general right of access consistent with the system of constitutional democracy in the Cayman Islands.
The report can be found here.
Ombudsman Issues Hearing Decision 70
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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 here.
Case Summaries & Year in Review
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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 here.
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.
Ombudsman Issues Hearing Decision 61
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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 here.