With some residents wondering whether the roles of the Human Rights Committee (HRC), the Office of the Complaints Commissioner (OCC), and, the future Freedom of Information (FOI) Commissioner overlap, Complaints Commissioner, Dr John Epp, has said there is no overlap.

An FOI Commissioner is not yet in place because the Cayman Islands still has some distance to go with enacting FOI legislation, however, what is important is, as Dr Epp explained, in some cases, the OCC could even be the final arbiter, when there is a complaint from the public about how the HRC handled a matter.

According to Dr Epp, in an instance like that, "If there is an allegation against the HRC for not giving fair treatment to a matter, the OCC would then have to carry out investigations involving the HRC."

Explaining the matter further, Dr Epp said, "The OCC's function is to carry out independent investigations into the functioning of any Government entity.

"The HRC, (as it is now constituted), is a Government entity."

Moving to the question of what some people see as being unclear about where to direct their complaints, Dr Epp explained that if a matter came in to the OCC - one that should have been referred to the HRC in the first place, because it involved Human Rights issues - then the OCC would assist the complainant by referring the matter to HRC.

Dr Epp said that the roles of the two entities are distinct.

He added that some current instances of persons being unsure of where to submit their complaints will reduce significantly when public general knowledge about the OCC and the HRC increases.

For one resident who spoke with Cayman Net News, the distinction between the two entities' roles, as far as knowing where a Human Rights-related matter should be first addressed, was still not clear.

He said that he was unclear - especially against the background of the section of the OCC Information document that clearly states that complaints to the OCC "may focus on relevant topics of maladministration such as ... unwillingness to treat the resident as a person with rights ..."

When the HRC issued its first report late in June 2006, Vaughan Carter, Deputy Chief Officer in the Ministry of Education and Deputy HRC Chairman explained that HRC's scope was clearly much larger in relation to Human Rights issues and said, "One case was referred (to the HRC) from the OCC. Their jurisdiction is limited."

Shedding some light on the OCC's "jurisdiction" is OCC information explaining that the Commission was created to "encourage Government departments and agencies to better serve the public.

"It is an independent office, which answers to the Legislative Assembly as a whole, through the Speaker.

Dr Epp explained, "The Office investigates written complaints against Government departments, Ministries, Portfolios, Companies, Authorities, Statutory Boards and agencies. "The investigation, which is conducted in private, will determine if injustice has been caused to the resident by improper or unreasonable conduct, or, by inadequate administration.

"Complaints may focus on relevant topics of maladministration such as inefficient, bad or improper administration.

"These terms include bias, partiality, neglect, inattention, delay, abuse of power, incompetence, inaptitude, perversity, rudeness.

"The terms also include neglecting to inform a complainant about rights, entitlements or appeal routes; knowingly giving misleading or inadequate advice; offering no redress; faulty procedures; failure by management to adequately monitor compliance procedures; and, failure to reduce the effects of rigid adherence to the letter of the law, where that produces inequitable results."

However, another element of limitation as far the OCC is concerned, is that "the OCC does not take a side in the dispute, but provides an objective evaluation of the circumstance involved.

"The office can assist with resolving the dispute, and, recommend improvements in procedures and rules."

But based on the HRC report, it is clear that the HRC goes further than the OCC in relation to the matters it handles.

This can be seen in the case where a complainant to the HRC objected to a clause that a Government entity sought to include in a contract of employment, which would have precluded the complainant from talking about his particular religion.

The HRC accepted the complaint on the basis that there was an arguable case of religious discrimination, which could have been in breach of Article 8 in conjunction with Article 14 of the European Convention on Human Rights; and referred the matter to the Procedural Sub-Committee for further investigation.

When the government entity concerned was contacted, it agreed to a review of the situation and eventually decided to withdraw the offending clause in the contract, thus eliminating the human rights issue and addressing the concerns of the HRC.

For one resident, where the distinction between roles, for some matters, is not as clear, is when it comes to the OCC and a future FOI Commissioner.

Even at present, the OCC's remit includes handling complaints where there has been a "refusal to answer reasonable questions."

In early March 2006 Dr Epp also forged a connection between the roles of the FOI and the OCC.

He confirmed the possibility of more work for the Commission with the coming of Cayman FOI laws.

He said, "The office (OCC) continues to prepare for additional duties in the event that it is asked to serve as the independent arbiter of disputes under the Freedom of Information Law."

Explaining, he said that if someone made an application for a document and they were refused, and a dispute about being wrongly denied access to the document ensued, there would have to be someone to arbitrate in the dispute, and ensure that the document is handed over if it should have been.

 "Under the FOI Bill when there is a dispute about whether a Government officer has withheld documents, there is some avenue for appeal and there is open debate as to whether a tribunal is efficient," Dr Epp said - giving one of the reasons as being the possibility of irregular meetings of that body.

"In the current writing of the Bill there has been discussion about it being better to have a full-time office available to decide disputes.

"In other small jurisdictions such as New Brunswick and Manitoba, in Canada, the Ombudsman is asked to be the Information Commissioner. So it is not unusual to have the two roles in one office."

However, one officer familiar with both OCC and FOI UK operations said, "It is clear that the FOI Commissioner becomes involved in complaints where information that should be public, is withheld, and, the OCC deals with a much a wider cross-section of complaints."

But again pointing out that there were some similarities in FOI and OCC roles, Dr Epp, speaking with Cayman Net News explained that he had recently taken part in a Harvard Law School two-week programme on Advanced Negotiation Skills

He said that in his role as Complaints Commissioner, and, in preparation for any future FOI assignments, new and improved negotiation techniques were always needed "to move matters forward and achieve "win-win" outcomes.

Dr Epp explained that an OCC officer was "part of the working group involved in the very time-consuming exercise, distilling public feedback on the FOI Bill."