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An applicant under the Freedom of Information (FOI) Act sought records relating to fee, duty and tax waivers negotiated between the government and several private developers dating from 2017.

The Ministry of Finance released a significant number of records in redacted form to the applicant before and during the appeal process. The Ombudsman found that Cabinet and Caucus papers containing “opinions, advice or recommendations… prepared for or arising in the course of proceedings of the Cabinet” were appropriately withheld as were records containing personal information and information exempted from disclosure by other legislation.

The Ombudsman ordered the majority of the documents under review, detailing the concessions granted by government for major development projects, to be released to the applicant within 30 days.

The ministry included documents that were outside the scope of the information request; those that were created prior to 2017 or that involved agreements between private companies only. This caused additional delays as the Ombudsman had to sort out which documents were appropriate to be included and which were not. Time was also spent during the government’s internal FOI process consulting with third party commercial stakeholders (the development companies) over information that was not personal data. A request for personal data would trigger the requirement to consult with third parties under the FOI regulations, but those regulations do not apply to commercial data.

“Public authorities are free to consult with whomever they wish, but there is no provision to delay responses beyond the normal timelines for consultation with commercial entities,” the Ombudsman wrote in the hearing decision.

There also appeared to be a general misunderstanding of FOI principles in that the ministry applied some exemptions to information of certain developers, but not to similar information of others. Still other records were said to be exempted because the applicant had not demonstrated the “need” to obtain them. The FOI Act, established under the Cayman Islands Constitution Order, 2009, gives applicants the legal right to request access to information without considering who is making the request or why they are seeking those details.

The full text of the decision may be found here: https://ombudsman.ky/images/pdf/decisions/FOI_Decisions/Hearing_88-202100094_Min_Finance.pdf

Any member of the public wishing to submit an appeal of a government decision on an FOI request may phone the Ombudsman at 946-6283 or email info@ombudsman.ky. For more information about Cayman’s FOI Law, please see our website at www.ombudsman.ky.