Confidentiality of Government Records and Reasons for Refusal

Presentation to Boards and Committees18th November 2008Carole ExcellFOI Unit

“ The implementation of the Freedom of Information law will have the effect of significantly curtailing the nature and scope of the information regarded as confidential”

Commission of Enquiry, Sir Richard Tucker, 2008

Confidentiality of Government Records and FOI

Rules on confidentiality in the civil service were originally found in the General Orders (s.54 of the Cayman Islands( Constitution ) Order 1972

No Official Secrets Law in the Cayman Islands

Confidentiality of Government Records and FOI

Public Service Management Law (PSML) and Regulations repealed the General Orders and defined a Public Servants Code of Conduct

The Code of Conduct applies to all public servants (statutory authorities/Govt Companies)

Public Service Management Law

Civil Service Code of Conduct

paragraph 5(h) A public servant shall treat all official

information and any dealings with the Governor, an Official Member or Minister as confidential , and unless authorized to do so, must not give or disclose directly or indirectly, any information about official business or anything which he has official knowledge.

Declaration of Secrecy

Civil Servants have been required to sign a Declaration of Secrecy at the time of appointment.

Content refers to military and national security secrets

Preparation for FOI

Proposals for amendment of the Civil Service Code of Conduct and of the Declaration of Secrecy are being made to Cabinet by the FOI Unit.

The intention is to amend the PSML as at January 2009 to ensure no inconsistency with FOI.

Duties of Directors

All directors of statutory authorities and government companies owe the same fiduciary duty and duty of care as civil servants in relation to the treatment of records of government.

Non-executive directors appointed from the private sector will be treated as subject to the Code only if they are regarded as part time employees of the authority or company in question under the Code of Conduct (Commission of Enquiry March 2008)

Duties of Directors Recommendations from Commission of Enquiry

March 2008 Written document management policies are

important for directors to facilitate public access to information.

Boards must establish a clear written statement which identifies which documents will be exempted from disclosure under the grounds of the law.

Statutory authorities and government companies publish annual audited financial statements they should also publish annual reports to advise the public about their activities.

Confidentiality of Government Records and FOI

FOI Law premise is that information will be made available unless exempt or excluded.

FOI Law governs all records held by public authorities.

Note Definition of “held”.

FOI & Boards and Committees All ninety (90) Boards and

Committees have a secretary appointed who is a civil servant and holds the record on behalf of the Public Authority.

Records of all Boards and Committees are therefore “FOI-able” unless excluded from access.

FOI & Boards and Committees

This does not mean all records will be open to access to the public.

It means ALL records of a public authority are open unless an exemption applies to make the record or part of a record confidential or exempt.

FOI & Boards and Committees Boards and Committees need to understand

the FOI Law

Some current laws with confidentiality provisions may need to be revised in light of the passage of the FOI Law

Boards and Committees need to seek to be proactive also in publishing information including minutes of meetings that do not contain exempt information or are subject to non-disclosure provisions.

Confidentiality of Government Records and FOI

Cayman Islands Legislation provides statutory rules for Boards on confidentiality or openness.

The FOI Law will in 2009 dictate rules on release of information unless another statute includes a specific provision that restricts access to records. (s.3(7))

Civil Aviation Authority s.8(7)

S. 8(7) The decisions, resolutions, orders, policies and rules made by the Board shall be recorded in the minutes and kept by the secretary to the Board, and the Board shall cause any decision, resolution, order, policy or rule which affects the members of the public to be published in the Gazette, in a website or in a newspaper of the Islands.

The Development and Planning Law –First Schedule

10. Subject to this Schedule the Authority and Board shall have power to regulate their own proceedings.

Regulation of own proceedings Statement of policy for directors on how to

handle confidential information and duties of confidentiality depending on type of business ( competitive)

Determination on publishing of information or openness of meetings

Articles of association of government companies could reflect the duties of boards of directors in relation to records

Laws considered inconsistent with FOI law

Immigration Law 2007 Revision Trade and Business Licensing Law 2007

Revision Local Companies (Control) Law 2007 Revision Development Bank Law 2004 Revision -

(Cayman Islands Development Bank) Tax Information Authority Law 2005 Maritime Authority Law 2008 Revision Public Service Pensions Law (2004 revision)

The Maritime Authority Law -

Confidentiality S.21. (1) Subject to subsection (2), whoever, being a director,

officer, employee, agent or adviser of the Authority discloses, without the prior authorisation of the Board, information acquired by him by reason of his office or employment or in exercise of the Authority’s function under or for the purposes of this Law or any other law, which information relates to - (a) the affairs of the Authority; (b) the affairs of a ship on the register; or (c) the affairs of a registered owner of a Cayman Islands ship,

is guilty of an offence summary conviction -ten thousand dollars imprisonment 1 year, indictment -fifty thousand dollars -3 years. (2) Subsection (1) shall not apply to a disclosure - (f) lawfully made to a person entitled to obtain such information

under the laws of the Islands.

Immigration Board - Duty of Confidentiality

9. (1) The fact and any particulars of, or relating to, any matter falling for consideration by, or the decision of, a Board shall be treated as confidential by each member of that Board and he shall not disclose any such fact or particular otherwise than in the proper performance of his duties under this Law or in compliance with the order of a court of competent jurisdiction.

(2) The failure of any member to comply with subsection (1)- (a) is an offence; and (b) constitutes a sufficient ground for the termination of his

appointment. (3) Any allegation of a breach of subsection (1) shall be

fully investigated by a constable of the rank of Inspector or above.

FOI and Committees and Boards Specific decisions and resolutions

should be made by each Board on publication of decisions and resolutions, and minutes of meetings to comply with requirements of FOI.

Consultation with relevant FOI Information Managers will be critical to assist implementation.

The Giving of Reasons

The Giving of Reasons Persons affected by a decision are

usually entitled to procedural fairness, also known as natural justice, in relation to the decisions of government authorities

The FOI Law requires public authorities to make “best efforts” to ensure decisions and the reasons for those decisions are made public unless the information disclosed would be exempt. (s.27)

THE LONG ANSWER IS NO

FoI

The Giving of Reasons The giving of reasons should include a written

statement setting out the findings on material questions of fact, referring to the evidence or other material on which the public authority’s findings were based and giving reasons for the decision.

Precedent abroad gives some guidance as to the content of a statement of reasons:

 Every decision should be capable of a logical explanation. A statement of reasons should contain the steps linking the facts to the ultimate decision made. In this way, the person affected can understand how the decision was reached.

The Giving of Reasons The criteria relevant to the decision, the

weight attached to each criterion, and the conclusion reached on the criteria should be stated.

The reasoning should identify any element of policy or guideline or departmental practice which is part of the justification of the decision made.

The Giving of Reasons

Decision makers frequently act upon recommendations, reports, and results of investigations carried out by other officers or appropriately qualified experts.

The statement of reasons should incorporate the recommendation, as well as the facts (and a reference to the evidence or other materials on which they are based) and the reasons leading thereto.

The Giving of Reasons

The Giving of reasons is important to:-

(1) Explaining "how" and "why" the decision was made. There should be a simple, clear explanation of why the decision has been made.

The Giving of Reasons

The Giving of reasons is important to:-

(2) Improve the quality of decision-making within the government itself.

(3) to explain the decision so that a body asked to review the decision either internally or externally can clearly understand the reasoning

The Giving of Reasons

Boards and Committees making decisions that affect members of the public need to prior to January 2009 make an effort to review current procedures by which they make these decisions and determine how in PRACTICE they will make PUBLIC their decisions if these decisions do not contain EXEMPT information.