Now you can

easily decide

if it’s an FOI

request or

not!

FOI Requests and the Public DomainAubrey Bodden, Acting Policy Analyst

Freedom of Information Unit

IM Network Meeting20th July 2010

Presentation Goals Outline requirements of the FOI Law

Define “Public Domain”

Discuss alternate forms of access

Explain how to “refuse” these requests

Identify what constitutes an FOI request

Highlight your publication scheme

Remind you to sensitise your staff

s. 4. The objects of this Law are to reinforce s. 4. The objects of this Law are to reinforce and give further effect to certain and give further effect to certain fundamental principles underlying the fundamental principles underlying the system of constitutional democracy, namely-system of constitutional democracy, namely-

(a) governmental accountability;(a) governmental accountability;

(b) transparency; and(b) transparency; and

(c) public participation in national (c) public participation in national decision-making,decision-making,

by granting to the public a general right of by granting to the public a general right of access to records held by public authoritiesaccess to records held by public authorities

What does the FOI Law say?

s. 9. A public authority is not required to comply with a request where-

(d) the information requested is already in the public domain

So what is the “Public Domain”?

Information that is already

published, freely available and generally accessible by

the public without any

access restrictions

What are some examples?

Electronic documents on your website

Information that was included in a press release or printed in the media

Anything that was reported in the Legislative Assembly, etc that constitutes part of a public record

Printed material distributed by your authority to the general public

What if there is a fee? “Freely” in this case means without

interference or restriction

If your public authority charges an administrative fee for any document provided in a specific format the information is still “freely available”

Freedom of Information does not mean information is or has to be provided to the public free of cost

What if my public authority did not release the information?

Even if the information was released by another public authority or public official… it is still in the public domain Records held by multiple authorities

Position by Grade and Salary Scale available on www.pocs.gov.ky

Legislation ~2004 – present available on www.gazettes.gov.ky

So is everything that is already available “in the public domain”?

No. Legal provisions or administrative policies that outline a set fee and/or procedures to access specific records are dealt with separately.

What does the FOI Law say?

s. 6. (4) Where a record is-

(a) open to access by the public pursuant to any other enactment as part of a public register or otherwise; or

(b) available for purchase by the public in accordance with administrative procedures established for that purpose,

access to that record shall be obtained in accordance with the provisions of that enactment or those procedures.

Alternative forms of access If a requested record is only available-

to certain people, under certain circumstances, in particular formats, or following specific procedures

that record is not in the public domain

These types of records should be accessed under relevant policies and procedures

These requests should not be treated as FOI requests; any manual FOI files or JADE entries should be administratively closed

What are some examples? Police clearance certificates

Inspecting the shipping registry

Hard copies of Immigration letters

Birth, death, marriage certificates

Official copies of accident reports

Court searches

Physical copies of gazettes or laws

Audio recordings of radio shows

As Information Manager, you should be aware of all laws and policies (whether formal or informal) which allow access to information held by your public authority, how such access is granted and any limits or restrictions

So what do I need to know?

FOI (General) Regulations section 21(m): An information manager shall keep up to date with their knowledge of

the [FOI] Law, the laws relevant to the administration of their public authority, the Code of Practice on Records Management, and the laws and practices affecting the

management of records and information

Births and Deaths Registration Law 2007 Revision

Adoption of Children Law 2003 Revision The Builders Law 2007 Building Societies Law 2001 Revision Customs Tariff Law 2002 Revision Building Code Regulations 2006 Companies Law 2007 Revision Cooperative Societies Law 2001 Revision Court fees Rules 2008 Revision Development and Planning Law 2008

Revision Development and Planning Regulations

2006 Revision Endangered Species Protection and

Propagation Law 1999 Revision Government Fees Law 2007 Revision Grand Court Bankruptcy Rules (1977) Health Services (Fees and Charges)

Amendment Regulations 2008 Health Practice Law 2005 Revision Marine Conservation (Marine Parks)

Regulations 2007 Revision Marriage Law 2007 Revision The Merchant Shipping Law 2005 Revision Mining Law 1997 Revision National Roads Authority Law 2006 Revision Notaries Public Law 2006 Revision Partnership Law 2002

The following Cayman Islands laws contain specific provisions which allow access to information in an alternative form (as of 2008)

Patents and Trade Marks Law 2007 Revision Penal Code : Prohibited Publications Order

1998 The Pharmacy (Poisons and Restricted

Pharmaceuticals) Regulations 1999 Revision Postal Regulations 2007 Revision Public Accountants Law 2004 Public Accountants (Disciplinary regulations)

2006 Public Holidays Law 2007 revision Public Recorder Law 2007 revision Public Health (Garbage and Refuse Disposal)

Regulations 2003 Register of Interests Law 1996 Registered Land Law 1996 Restricted Marine Areas (Designation)

regulations 2003 Revision Roads Law 2005 Revision : Roads (Names of

Public Roads) Regulations. Scheme of Arrangements for the Community

Service of offender in the Cayman Islands published under s42(3) of the Penal Code

Tourism Regulations 2002 revision Trade and Business Licensing Law 2007

Revision Trade Union Law 1998 revision Traffic Law 2003 Revision. Veterinary Law 1997 Revision Water Authority Regulations 2007

Information is routinely made available by Government

FOI supplements and complements existing statutory, administrative and informal arrangements that allow access to information

FOI should not bureaucratise the routine release of information

What else should I consider?

Do I still treat it as a Freedom of Information request?

You are not required to comply with a request under the FOI procedures if the information is already in the public domain or otherwise available Acknowledgement Formal letters Mandated timelines Updating JADE Record delivery Transfers Manual files Disclosure log Reporting … … … …

But it sounds so bad to “refuse” to comply with a request…

You should still be helpful! Inform the applicant that the information is already available Explain how to access the record/information Detail any fees and/or restrictions that mayapply (and the reason) Include a copy of the record or direct

website link if available and possible

What does the FOI Law say?

FOI (General) Regulations:

s. 21. (d) An information manager shall inform applicants when it is known that a record is already published and if requested provide information as to where the information can be accessed or provide access to that information

What if I already acknowledged it as an FOI request?

If you handle the query as an FOI request, you are required to notify the applicant in writing where the records are held and how to obtain access You may include a copy of the requested record

with your decision, but this is not mandatory and may not be possible for some records

What about JADE? Requests for records that are in the

public domain or otherwise available should NOT be entered in JADE

However, if an electronic file has already been created, you must- Complete the correspondence history Record the outcome (with remarks) Close the electronic file (promptly) Include this information in your reports

JADE Outcomes Information in the Public Domain

Information otherwise available

DO NOT use granted in full

What if I’m wrong? If the applicant is interested in more

information a new FOI request can be made

Internal review is available if you grant access to only some of the records specified

An applicant can contact the ICO at any point if he or she feels that a public authority has failed to comply with an obligation imposed under the FOI Law May direct the applicant back to the public

authority

How can I avoid mistakes? It is important to scope a request and

do preliminary research before acknowledging it as an FOI request

Know your records! You should be able to quickly and easily determine if requested records are already in the public domain or otherwise available and how those records can be accessed

Why shouldn’t I treat it as an FOI request just to be safe?

That is not what FOI is for! Also, it would- Decrease efficiency Increase bureaucracy and costs Encourage the public to misuse FOI Further misunderstandings about FOI

If it is handled outside of FOI the response can be less formal

Government released information before FOI, continue to do so!

So what IS an FOI request?

A Freedom of Information request is a written request for a record or records which are not in the public domain and not otherwise available to the applicant

What if the applicant doesn’t ask for a specific record?

Applicants will not always understand how FOI works and how to make a request. Potentially valid requests may come in as questions or complaints.

Do not immediately dismiss the applicant if the request does not appear to be valid under the FOI Law at first glance

What does the FOI Law say?

s. 11 (1) Where the information provided bythe applicant in relation to the record is notreasonably necessary to enable the publicauthority to identify it, the authority shallafford the applicant a reasonable opportunityto consult with the authority with a view to

reformulating the application so that the record can be identified

FOI (General) Regulations:

s. 21. An information manager shall-

(b) conduct interviews with applicants to ensure that the appropriate records are located

Is it an FOI Request? - Yes

YES – The request is for information that is not available under another administrative policy or procedure in your public authority

YES – It is not information that you could give out in the normal course of business

YES – The applicant wants to obtain access to a record not previously made public

YES – The requested record is not listed in your publication scheme as being readily available to any person (more on your PS later)

Is it an FOI Request? - No

NO – The record is open to access by the public pursuant to an enactment (s. 6(4)(a))

NO – The record is available for purchase by the public in accordance with administrative procedures (s. 6(4)(b))

NO – The information is in the public domain

NO – You gave out this kind of information before FOI came into effect

NO – The request is for contact details or other basic information about your public authority and its functions

Is it an FOI Request? - No ctd.

NO – JUST BECAUSE…

Another staff member thinks you should deal with it because you’re the IM

Another public authority transferred it

It came in on an FOI application form

It is addressed to the Information Manager

It mentions “Freedom of Information”

It came in to the FOI email

Your Chief Officer told you to

Remember – Requests are for Records…

s. 6. (1) Subject to the provisions of this Law, every person shall have a right to obtain access to a record other than an exempt record

… Not Answers to Questions

Ensure that FOI Requests are Always Answered with Records

Don’t just answer the applicant’s question Give it some thought! How do YOU know the answer?

If the answer is hard or impossible to give with records, the question might not be an FOI request

You can answer a portion of an applicant’s request outside of the parametres of FOI

Publication Schemes… Remember those?

Cayman Islands is more open11 January, 2010

More information is now available to the public about the operation and responsibilities of Cayman's 88 separate government agencies than has ever been available in the past.

Starting on 4 January, a massive 1,400+ page publication scheme for all entities covered under the Freedom of Information Law was released to the public. The document generally details what information is available on the agency's website and what is open to the public as a matter of course.

…

'The purpose of the publication scheme is to make information readily available to the public without the need for specific written requests,' according to the Cayman Islands Information Commissioner's Office. 'Schemes are intended to encourage authorities to proactively publish information to develop a culture of openness and transparency.'

What does the FOI Law say?

s. 5. - mandates publication schemes to make certain records available to the public, describing how they can be obtained

FOI Requests

Publication Scheme

Proactive Disclosure

What does the FOI Law say?

s. 51. - provides for the Deputy Governor’s Code of Practice on Publishing, which outlines minimum standards and best practices regarding the duty of public bodies to publish information and creates a template to use

What does the FOI Law say?Schedule – Information to be Published by Public Authorities- Description of functions

- List of departments and agencies- Subjects handled, locations, opening hours

- Titles and business address of the principal officer

- Statement of records for the use of, or which are used by the public authority or its officers in making decisions or recommendations

- e.g. manuals or other records containing interpretations, rules, guidelines, practices, precedents

What if I get a request for a record listed in my Publication Scheme?

Requests for information included in your publication scheme should be dealt with as your scheme prescribes

This may mean an FOI request, but your publication scheme should also list all documents otherwise available

What do other public servants need to know?

All Information Managers should ensure that all public authority employees are aware of the requirements of the FOI Law What constitutes an FOI request Basic procedures for making an application Information that is otherwise available How to contact you for advice and assistance

Half-day course for public servants is on an ad-hoc basis Replaces sensitisation sessions Particularly useful for front-line staff

and members of boards/committees

Bottom line…

If you or another staff member can answer a request without using

Freedom of Information…

DO IT

THANK YOU!ANY

QUESTIONS?