Sensitization forBoards and Committees on

theFreedom Of Information Law,

2007Natasha N. Bodden, LLBNatasha N. Bodden, LLB

FOI Policy AnalystFOI Policy AnalystFreedom of Information UnitFreedom of Information UnitCayman Islands GovernmentCayman Islands Government

What is Freedom of What is Freedom of Information?Information?

Freedom of Information speaks to Freedom of Information speaks to the right of the public to see the right of the public to see

government information from a government information from a Cayman Islands public authority. Cayman Islands public authority. 

Objects of the Law (s.4) - TAPObjects of the Law (s.4) - TAP

To reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy,

(a) transparency(b) accountability and(c) public participation in national

decision-making,by granting to the public a general right of access to records held by public authorities.

Who will FOI cover?Who will FOI cover?

WHOWHO is a Public authority? is a Public authority? A ministry, portfolio or department;A ministry, portfolio or department; A statutory body or authority, whether A statutory body or authority, whether

incorporated or not; incorporated or not; A government company which-A government company which-

Is wholly owned by the Government or in Is wholly owned by the Government or in which the Government holds more than 50% which the Government holds more than 50% shares; shares;

Extension - organizations that receive Extension - organizations that receive government appropriations and that government appropriations and that provide a service important to welfare provide a service important to welfare of Caymanian societyof Caymanian society

What will FOI cover?What will FOI cover?

WHATWHAT are Records? “Information held in any form” including: are Records? “Information held in any form” including:

A record in writing;A record in writing; A map, plan, graph or drawing;A map, plan, graph or drawing; A photograph;A photograph; A disc, tape, sound track or other device in which sound or other data are A disc, tape, sound track or other device in which sound or other data are

embodied, whether electronically or otherwise, so as to be capable (with embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced or without the aid of some other equipment) of being reproduced therefrom;therefrom;

Any film (including microfilm), negative tape or other device in which one Any film (including microfilm), negative tape or other device in which one or more visual images are embodied, whether electronically or otherwise, or more visual images are embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom,being reproduced therefrom,

heldheld by a public authority in connection with its functions as such, whether by a public authority in connection with its functions as such, whetheror not it was created by that authority or before the commencement of theor not it was created by that authority or before the commencement of theLaw.Law.

What records do you create / What records do you create / manage?manage?

Agendas / Minutes / ResolutionsAgendas / Minutes / Resolutions Applications – licenses, Immigration Applications – licenses, Immigration

matters, housing, scholarships, matters, housing, scholarships, admissionsadmissions

Bids / TendersBids / Tenders Copyright material – architectural plans, Copyright material – architectural plans,

survey materialsurvey material Personal Information – membership lists, Personal Information – membership lists,

application information, decision materialapplication information, decision material

Who holds your records?Who holds your records?

““Hold”, in relation to a record that is liable to Hold”, in relation to a record that is liable to production under this Law, means in a public production under this Law, means in a public authority’s possession, custody or control.authority’s possession, custody or control.

““Possession” = held by the public authority, Possession” = held by the public authority, ““Custody” = someone else’s document which Custody” = someone else’s document which

the authority is looking after the authority is looking after ““Control”Control” = a document held by someone else, = a document held by someone else,

but where the authority can decide what but where the authority can decide what happens to ithappens to it

Records stored off-site, but which are still Records stored off-site, but which are still under the “control” of a public authority, are under the “control” of a public authority, are considered to be “held” by that public considered to be “held” by that public authority.authority.

Publishing your recordsPublishing your records

As a general rule, public authorities should publish as As a general rule, public authorities should publish as much as possible, including:much as possible, including:

minutes and agendas; documents required to be minutes and agendas; documents required to be made public by other legislation; minutes of senior-made public by other legislation; minutes of senior-level policy and strategy meetings, including board level policy and strategy meetings, including board meetings; any background documents referred to in meetings; any background documents referred to in the agenda or minutes or circulated in preparationthe agenda or minutes or circulated in preparation

They do not need to publish:They do not need to publish: information that would be excluded from or exempt information that would be excluded from or exempt

under the Freedom of Information Law or barred from under the Freedom of Information Law or barred from release by another law in the Cayman Islands; release by another law in the Cayman Islands; personal information which would be unreasonable to personal information which would be unreasonable to disclose; older records which fall within the public disclose; older records which fall within the public authority’s records disposal schedule; lower-level authority’s records disposal schedule; lower-level internal meetings which would be of less interest to internal meetings which would be of less interest to the publicthe public

What is an FOI request?What is an FOI request? A query seeking information about anything of any A query seeking information about anything of any

ageage Anyone can make a request from any where in the Anyone can make a request from any where in the

worldworld There is no need to state that it is a Freedom of There is no need to state that it is a Freedom of

Information requestInformation request A person cannot be asked for the reason for the A person cannot be asked for the reason for the

requestrequest A request: A request:

must be in writing and includes emailsmust be in writing and includes emails have a name and addresshave a name and address describe the information being requesteddescribe the information being requested

FOI allows access to all documents provided it FOI allows access to all documents provided it doesn’t fall into an exempted/excluded categorydoesn’t fall into an exempted/excluded category

DecisionDecisionPublic authorities may:Public authorities may:

(1) Grant access(1) Grant access(2) Extend the time for response(2) Extend the time for response(3) Refuse access(3) Refuse access(4) Defer access to a record(4) Defer access to a record

BUTBUT They must give a reason for the decision and inform They must give a reason for the decision and inform

the applicant of the right of internal review or the applicant of the right of internal review or appealappeal

They can grant partial access to part of a document They can grant partial access to part of a document and sever (redact) the exempt part (s.12)and sever (redact) the exempt part (s.12)

They may transfer the request to another authorityThey may transfer the request to another authority

FOI Decision MakersFOI Decision Makers

Information Managers are appointed in Information Managers are appointed in each public authority to:each public authority to: Promote best practices, receive requests, Promote best practices, receive requests,

assist individuals seeking access and assist individuals seeking access and receive complaints.receive complaints.

For all exemptions (except for s. 20) the For all exemptions (except for s. 20) the decision whether to grant access to decision whether to grant access to records under FOI is to be made by the records under FOI is to be made by the Information Manager.Information Manager.

TimelinesTimelines

Mandated response:Mandated response:

A decision must be given on A decision must be given on each request not later than each request not later than 30 30 calendar dayscalendar days after receipt. after receipt.Authorities may extend this Authorities may extend this period once for another 30 days period once for another 30 days only in instances of only in instances of “reasonable” cause.“reasonable” cause.

The Information Manager may need to The Information Manager may need to consult with you about decisions / minutes of consult with you about decisions / minutes of your Board. your Board.

How will that be facilitated?How will that be facilitated?

ExclusionsExclusionsThe Law wholly does not apply to:The Law wholly does not apply to:

Records that may not be disclosed under s.50 of the Records that may not be disclosed under s.50 of the Monetary Authority LawMonetary Authority Law

Records relating to directors, officers and shareholders Records relating to directors, officers and shareholders of companies exempted under the Company Lawof companies exempted under the Company Law

Judicial functions of a court or holder of a judicial office Judicial functions of a court or holder of a judicial office ( administrative records fall within the law)( administrative records fall within the law)

Records relating to the strategic or intelligence Records relating to the strategic or intelligence gathering information of the police, special constabulary gathering information of the police, special constabulary and customsand customs

Records that are the property of the Government of the Records that are the property of the Government of the UKUK

Private holdings of the National Archive where there is a Private holdings of the National Archive where there is a contract or other arrangement that restricts access contract or other arrangement that restricts access under the FOI Lawunder the FOI Law

ExemptionsExemptions Exemptions are specifically listed in Part III Exemptions are specifically listed in Part III

of the FOI Lawof the FOI Law

When a document or part of a document is When a document or part of a document is exempt, it will not be released to the publicexempt, it will not be released to the public

Exemptions apply when the disclosure of Exemptions apply when the disclosure of the document will prejudice or harm a the document will prejudice or harm a substantial public interest, such as security, substantial public interest, such as security, defence, international relations, to defence, international relations, to commercial interests, trade secrets, commercial interests, trade secrets, unreasonably disclose personal information, unreasonably disclose personal information, or jeopardize the life or safety of an or jeopardize the life or safety of an individualindividual

Why are there Why are there exemptions?exemptions?

There are some types of information which There are some types of information which would not be in the interest of the public or would not be in the interest of the public or the country to disclose the country to disclose e.g. national securitye.g. national security

Grounds for refusal also exist in recognition Grounds for refusal also exist in recognition that the information may be already that the information may be already available by another means and to ensure available by another means and to ensure the rights of access are not abused the rights of access are not abused

FYI – more than 1 exemption can apply!FYI – more than 1 exemption can apply!

ExemptionsExemptions Most of the exemptions are qualified Most of the exemptions are qualified

exemptions, while some include a exemptions, while some include a public interest test.public interest test.

The sensitivity of a record may change The sensitivity of a record may change over time due to the passage of time or over time due to the passage of time or change in circumstances.change in circumstances.

An exemption from disclosure does not An exemption from disclosure does not apply after the document has been in apply after the document has been in existence for twenty years from the existence for twenty years from the date of creation (s.6) except the date of creation (s.6) except the exemption for heritage sites (75 years) exemption for heritage sites (75 years) and personal information (forever).and personal information (forever).

What is the public interest?What is the public interest?

Public interest means that there is a Public interest means that there is a benefitbenefit to the public in certain to the public in certain information being made available.information being made available.

It does not mean It does not mean “of interest to the “of interest to the public”public” but but “in the interest of the “in the interest of the public”public”

It is a balancing exercise and you may It is a balancing exercise and you may be called to provide evidence for what be called to provide evidence for what are the adverse consequences of are the adverse consequences of release.release.

Public Interest Public Interest TestTest181819(1)(a)19(1)(a)20(1)(b)20(1)(b)20(1)(c)20(1)(c)20(1)(d)20(1)(d)2121222223232424

NO Public Interest NO Public Interest Test (absolute)Test (absolute)

15 15

1616

1717

19(1)(b)19(1)(b)

20(1)(a)20(1)(a)

Application of the Public Interest Test

S. 15 – Security, Defence, International Relations S. 15 – Security, Defence, International Relations (NOT subject to the public interest test)

This section relates to information that the disclosure of This section relates to information that the disclosure of whichwhich

would prejudice the security or defence or internationalwould prejudice the security or defence or internationalrelations of the Islands. relations of the Islands.

S. 16 - Law EnforcementS. 16 - Law Enforcement ((NOT subject to the public interest test)

This section relates to information that the disclosure of This section relates to information that the disclosure of whichwhich

would:would: endanger a person’s life or safety; prejudice current or endanger a person’s life or safety; prejudice current or

pending investigations, or possible prosecutions; affect pending investigations, or possible prosecutions; affect the trial of a person; prejudice to procedures for the the trial of a person; prejudice to procedures for the prevention, detection or investigation of breaches or prevention, detection or investigation of breaches or evasions of the law; facilitate a person’s escape from evasions of the law; facilitate a person’s escape from lawful detention or jeopardize the security of prison.lawful detention or jeopardize the security of prison.

S. 17 - Legal Professional PrivilegeS. 17 - Legal Professional Privilege (NOT subject to the public interest test)

This protects a client’s confidence that any This protects a client’s confidence that any communication with his/her professional communication with his/her professional legal adviser will not be revealed without legal adviser will not be revealed without consent, consent, even to a court of law.even to a court of law.

S.18 - National EconomyS.18 - National Economy (subject to the public interest test)

Where disclosure or premature disclosure Where disclosure or premature disclosure would have a substantial adverse effect on would have a substantial adverse effect on the Caymanian economy or the ability of the Caymanian economy or the ability of government to manage the economy government to manage the economy including records relating to duties and including records relating to duties and monetary policy.monetary policy.

S.19 - Cabinet DocumentsS.19 - Cabinet Documents(19(1)(a) subject to the public interest test)

The purpose is to maintain the confidentiality The purpose is to maintain the confidentiality necessary for the proper functioning of Cabinet.necessary for the proper functioning of Cabinet.

This exemption covers: This exemption covers: opinions, advice or recommendations opinions, advice or recommendations

prepared for Cabinet; and prepared for Cabinet; and records of consultations or deliberations records of consultations or deliberations

during proceedings.during proceedings. This exemption does not apply to materials of a This exemption does not apply to materials of a

purely factual nature or reports, studies, tests purely factual nature or reports, studies, tests or surveys of a scientific or technical nature.or surveys of a scientific or technical nature.

S.20 - Effective Conduct of Public AffairsS.20 - Effective Conduct of Public Affairs(s. 20(1)(b),(c) and (d) subject to the public (s. 20(1)(b),(c) and (d) subject to the public

interest test)interest test)

This exemption covers disclosures that This exemption covers disclosures that would:would:

prejudice the maintenance of the prejudice the maintenance of the convention of collective responsibility of convention of collective responsibility of Ministers;Ministers;

inhibit free and frank exchange of views;inhibit free and frank exchange of views; disclose legal advice of the Attorney-disclose legal advice of the Attorney-

General; andGeneral; and prejudice the effective conduct of public prejudice the effective conduct of public

affairs.affairs.

S. 20(1)(a) – prejudice the maintenance of the S. 20(1)(a) – prejudice the maintenance of the convention of collective responsibility of convention of collective responsibility of MinistersMinisters

This enables Ministers to argue freely and frankly in This enables Ministers to argue freely and frankly in private whilst maintaining a united front once decisions private whilst maintaining a united front once decisions have been made, with all Ministers properly accepting have been made, with all Ministers properly accepting collective responsibility for Government decisions.collective responsibility for Government decisions.

S. 20(1)(b) – inhibit the free and frank exchange of S. 20(1)(b) – inhibit the free and frank exchange of views for the purposes of deliberationviews for the purposes of deliberation

The 'exchange of views' is limited only by being 'for the The 'exchange of views' is limited only by being 'for the purposes of deliberation’ and will include processes of purposes of deliberation’ and will include processes of decision-making, opinion-forming or evaluation, but is decision-making, opinion-forming or evaluation, but is likely to exclude very casual or trivial exchanges.likely to exclude very casual or trivial exchanges.

s. 20(1)(c) - this protects legal advice given by or s. 20(1)(c) - this protects legal advice given by or on behalf of the Attorney-Generalon behalf of the Attorney-General

s.20(1)(d)s.20(1)(d) – otherwise prejudice, or would be – otherwise prejudice, or would be likely to prejudice, the effective conduct of likely to prejudice, the effective conduct of public affairspublic affairs

This covers residual situations which might arise, This covers residual situations which might arise, where it was necessary to withhold information in where it was necessary to withhold information in the interests of good government. As this the interests of good government. As this exemption is so broad, a clear explanation will have exemption is so broad, a clear explanation will have to be given in any case in which this provision is to be given in any case in which this provision is relied on.relied on.

S.21 - Commercial InformationS.21 - Commercial Information(subject to the public interest test)

A record is exempt from disclosure if:A record is exempt from disclosure if: (1)(a) if it would reveal trade secrets or other (1)(a) if it would reveal trade secrets or other

information of a commercial value; ANDinformation of a commercial value; AND which value would be or could be expected to be which value would be or could be expected to be

destroyed or diminished by disclosure.destroyed or diminished by disclosure.

(1)(b) if it contains information (other than in (a)) (1)(b) if it contains information (other than in (a)) concerning the commercial interests of any concerning the commercial interests of any person or organization including a public person or organization including a public authority; ANDauthority; AND

disclosure of that information would prejudice disclosure of that information would prejudice those interests.those interests.

““Commercial value”Commercial value”

Information may be valuable because it is Information may be valuable because it is important to the profitability or the viability important to the profitability or the viability of a business.of a business.

Information also has a commercial value if it Information also has a commercial value if it can be sold on the commercial market.can be sold on the commercial market.

The fact that the information cost money to The fact that the information cost money to create by itself is not sufficient to show that create by itself is not sufficient to show that the information has a commercial value. the information has a commercial value.

If the information is publicly available or old If the information is publicly available or old then it may not have a commercial value.then it may not have a commercial value.

S.22 - Records relating to heritage S.22 - Records relating to heritage sites and species of plants and sites and species of plants and

animalanimal (subject to the public interest test)

Historical resource – Historical resource – pertaining to, treating, pertaining to, treating, or characteristic of history or past eventsor characteristic of history or past events

Archaeological resource - Archaeological resource - pertaining topertaining to historic or prehistoric peoples and their historic or prehistoric peoples and their culturescultures

Anthropological resource - Anthropological resource - pertaining topertaining to oorigins, physical and cultural development, rigins, physical and cultural development, biological characteristics, and social customs biological characteristics, and social customs and beliefs of humankind. and beliefs of humankind.

S. 23 – Personal InformationS. 23 – Personal Information(subject to the public interest test)

The purpose of this section is to prevent the The purpose of this section is to prevent the unreasonable disclosure of personal unreasonable disclosure of personal information and protect the privacy of information and protect the privacy of persons, including deceased persons.persons, including deceased persons.

This a non absolute exemption that This a non absolute exemption that recognizes that there may be a public interest recognizes that there may be a public interest in disclosure in some individual cases.in disclosure in some individual cases.

This exemption does not apply when an This exemption does not apply when an applicant requests their own information.applicant requests their own information.

Personal Information includesPersonal Information includes::As listed in the FOI Regulations, the following is considered As listed in the FOI Regulations, the following is considered an individual’s personal information: an individual’s personal information:

name, home or business address or home or business name, home or business address or home or business telephone number; telephone number;

race, national or ethnic origin, colour or religious or political race, national or ethnic origin, colour or religious or political beliefs or associations; beliefs or associations;

age, sex, marital status or family status; an identifying age, sex, marital status or family status; an identifying number, symbol or other particular assigned to the individual; number, symbol or other particular assigned to the individual;

finger prints, other biometric information, blood type, genetic finger prints, other biometric information, blood type, genetic information or inheritable characteristics; information or inheritable characteristics;

information about the individual’s health and health care information about the individual’s health and health care history, including information about a physical or mental history, including information about a physical or mental disability; disability;

Information about the individual’s educational, financial, Information about the individual’s educational, financial, employment or criminal history, including criminal records employment or criminal history, including criminal records where a pardon has been given; where a pardon has been given;

anyone else’s opinions about the individual, and anyone else’s opinions about the individual, and personal views or opinions, except if they are about someone personal views or opinions, except if they are about someone

else.else.

s. 23 – “unreasonable”?s. 23 – “unreasonable”?

Factors that could be considered include:Factors that could be considered include:

Whether the information is already in the Whether the information is already in the public domain;public domain;

The circumstances in which the information The circumstances in which the information was obtained, e.g. in confidence;was obtained, e.g. in confidence;

The nature of the information, e.g. bland vs The nature of the information, e.g. bland vs information of misconduct;information of misconduct;

Consideration of any objection; and Consideration of any objection; and Whether the information relates to matters Whether the information relates to matters

of personality, private characteristics or of personality, private characteristics or dispositiondisposition

S.24 - Health and SafetyS.24 - Health and Safety (subject to the public interest test))

Directly or indirectly. Directly or indirectly.

It may cause an endangering effect by It may cause an endangering effect by leading someone to take steps that can leading someone to take steps that can cause harm or creating a circumstance in cause harm or creating a circumstance in which a third party causes harm to others which a third party causes harm to others (e.g. information on kidnappings). (e.g. information on kidnappings).

It may cause mental harm directly as a It may cause mental harm directly as a result of shock or distress ( e.g. autopsy result of shock or distress ( e.g. autopsy photos).photos).

If applicants are unhappy, If applicants are unhappy, can they appeal?can they appeal?

Yes! Both internally and externally:Yes! Both internally and externally:

Internal review conducted by the Chief Internal review conducted by the Chief Officer, Principal Officer or Minister of an Officer, Principal Officer or Minister of an authority.authority.

Appeal to the Information Commissioner Appeal to the Information Commissioner now appointed by the Governor.now appointed by the Governor.

Final appeals may be taken to Court.Final appeals may be taken to Court.

What does your Board need to do to What does your Board need to do to ensure compliance with FOI?ensure compliance with FOI?

Know about the FOI Law, the requirements Know about the FOI Law, the requirements under the Law and how it will affect your and under the Law and how it will affect your and your Board’s conduct / record keepingyour Board’s conduct / record keeping

Know the Information Manager of the public Know the Information Manager of the public authority which your Board is a part ofauthority which your Board is a part of

Have procedures in place to routinely publish Have procedures in place to routinely publish your Agendas, Minutes, Resolutions, Reports, your Agendas, Minutes, Resolutions, Reports, etc. etc.

Be consistent and communicate with your Be consistent and communicate with your Information Manager on a regular basis and Information Manager on a regular basis and make yourself available for discussionsmake yourself available for discussions

If you have questions – ASK!If you have questions – ASK!

Thank you.Thank you.

Any questions?Any questions?