A ten part series dealing with the future of freedom of information in the Cayman Islands, reproducing a detailed analysis prepared by the Commonwealth Human Rights Initiative (CHRI) of the draft Cayman Islands Freedom of Information Bill 2005.  The CHRI is an international non government organization mandated for the practical realisation of human rights in the countries of the Commonwealth. Reprinted with permission

Part One:

Introduction:

The Commonwealth Human Rights Initiative (CHRI) downloaded from the internet a copy of the draft Caymans Islands Freedom of Information Bill 2005, which was published by the Cayman Islands Government. It is understood that the Bill is being released for public comment. CHRI has now analysed the Bill, drawing on international best practice standards, in particular, good legislative models from the Commonwealth. This paper suggests areas which could be reconsidered and reworked, as well as providing examples of legislative provisions which could be incorporated into a revised version of the Bill.

At the outset, CHRI commends the Government for stating that it will publish the Bill and shortly call for public comments on its appropriateness. Experience has shown that for any right to information legislation to be effective, it needs to be respected and ‘owned’ by both the government and the public.

Participation in the legislative development process requires that policy-makers proactively encourage the involvement of civil society groups and the public broadly. This can be done in a variety of ways, for example, by: convening public meetings to discuss the law; strategically and consistently using the media to raise awareness and keep the public up to date on progress; setting up a committee of stakeholders (including officials and public representatives) to consider and provide recommendations on the development of legislation; and inviting submissions from the public at all stages of legislative drafting.

Recommendation:

Review the entire Act and reassess whether it is appropriate for the Governor-in-Cabinet to be given such broad-reaching powers to amend the Act without the amendments first having to be referred to and/or approved by Parliament.

Analysis of Draft Bill and Suggestions for Improvement

While it is necessary to ensure that the public participates in the drafting process to ensure that the final legislation developed is appropriate for the national context, it is generally well accepted that there are basic minimum standards, which all RTI legislation should meet. Chapter 2 of CHRI’s Report, Open Sesame: Looking for the Right to Information in the Commonwealth, provides more detailed discussion of these standards. The critique below draws on this work. 

Overall, CHRI’s assessment is that the Bill in its current form contains some useful provisions. Nonetheless, this analysis suggests a number of amendments, modeled on recent right to information legislation. At all times, the recommendations proposed attempt to promote the fundamental principles of: maximum disclosure; minimum exceptions; simple, cheap and user-friendly access procedures; independent appeals; strong penalties; and effective monitoring and promotion of access.

General: Laws

Throughout the Act, there are numerous provisions, which permit the Cayman Islands Governor in Cabinet to amend the Act to narrow its scope. This is not in line with best parliamentary practice. It is not appropriate that the legislature – the elected body which represents the public – should not be part of any process to change the scope of the law.

Recommendation:

Amend s.1(2) to include a maximum time limit for the Act coming into force in, ideally the first implementation phase should be completed immediately, and any other phased not more than 1 year from the date the Act receives the assent of the Governor in Cabinet.

Part I:

Preliminary: Time Frame to Implement New Laws

Section 1 - Commencement

Although it is understandable that a government may wish to allow for time to prepare for implementation, best practice has shown that the Act itself should specify a maximum time limit for implementation, to ensure there is no room for the provision to be abused and implementation to be stalled indefinitely. As experience in India demonstrated (in respect of the Freedom of Information Act 2002), without a commencement date included in the Act, the law sat on the books for more than 2 years without being operationalised, despite receiving Presidential assent. This possibility should be avoided at all costs. International experience suggests a maximum limit of 1 year between passage of the law and implementation is sufficient (see Mexico for example). Alternatively, as has happened in Jamaica, a phased approach can be adopted, but any timetable for implementation should be specified in the Act itself.

Recommendation:

- Delete the definition of “official document” and amend the remainder of the Bill accordingly.

- Add a definition of the term ‘information’, which should subsume the current definition of document. A model definition could be:

“information” means any material in any form, including records, documents, file notings, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data, material held in any electronic form and any information relating to a private body which can be accessed by a public authority under any law.

- Broaden the definition of “public authority” to clarify that the law covers all arms of government and to cover:

“any…body owned, controlled or substantially finances…directly or indirectly by funds provided by the appropriate Government”.

- Add a definition of the term “access”. A model definition could be:

“access” to information means the inspection of works and information, taking notes and extracts and obtaining certified copies of information, or taking samples of material.

Section 2 - Definitions:

Increase Public Access

The Bill currently defines and uses the term “document” and “official document” throughout, rather than the broader term “information”. The current definitions are very limiting, unlike India and New Zealand for example, which allow a broad right to access “information” or “official information”. It is recommended that the term “information” be included in the definitions section and then used in the Bill instead of “official document”. Allowing access to “information” will mean that applicants will not be restricted to accessing only information which is already in the form of a document or hard copy record at the time of the application. Otherwise, the current formulation excludes access to things like scale models, samples of materials used in public works and information not yet recorded by an official but which should have been. In any case, the definition of “official document” should be deleted because it adds nothing and only serves to possibly limit access further. The definition could easily be abused by resistant officials to restrict access.

Section 2 should be amended to insert a definition of the term “access” to clarify the content of the right to “access” information. This will promote maximum accessibility by the public. In this context, the law should be drafted to permit access not only to documents and other materials via copying or inspection. It should also permit the inspection of public works and taking of samples from public works. Such an approach has been incorporated into the India Right to Information Act 2005 in recognition of the fact that corruption in public works is a major problem in many countries, which could be tackled by facilitating greater public oversight through openness legislation.

Identify Arms of Government

The current definition of “public authority” in s.2 is very narrow and will therefore reduce the usefulness of the law for the public by reducing its scope. The definition should be reworked to:

Make it clear that it covers all arms of government. In this context, it is particularly important to recognise that in any modern democracy, it is not appropriate to the give the executive broad immunities from disclosure. Such protection is a hangover from the days when the monarch was supreme, but this is no longer an appropriate approach to good governance.

Broaden the coverage of the Act over “government companies” to include more bodies in which the government has an interest. Otherwise, as has happened in Canada at the federal level, other forms of entity may be set up by government departments to avoid the application of the act, for example, trusts or joint ventures. Consideration could be given to replicate the definition at s.2(h) of the new Indian Right to Information Act 2005 which covers “any…body owned, controlled or substantially finances…directly or indirectly by funds provided by the appropriate Government”.

Part Two Tomorrow: Limitations on Our Rights to Information and How to Re-Draft the Laws Restricting Your Freedom.