Freedom of Information (General) Regulations, 2008

Natasha N. Bodden, LLBNatasha N. Bodden, LLB FOI Policy AnalystFOI Policy Analyst

Freedom of Information UnitFreedom of Information UnitCayman Islands GovernmentCayman Islands Government

What is a Law?What is a Law? The principles and regulations established in

a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision.

Any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution.

The controlling influence of such rules; the condition of society brought about by their observance.

A primary piece of legislation.

A regulation is a form of secondary legislation which is used to implement a primary piece of legislation appropriately, or to take account of particular circumstances or factors emerging during the gradual implementation of, or during the period of, a primary piece of legislation.

Other forms of secondary legislation are statutory instruments, statutory orders, by-laws and rules.

What is a Regulation?What is a Regulation?

The Freedom of Information (General) Regulations, 2008 have been approved by Cabinet and sent to the Legislative Assembly to be Gazetted before January 2009.

These Regulations should be used in conjunction with the FOI Law when you are making your decisions. They define and clarify some of the “gray areas” of the FOI Law.

FOI Law and RegulationsFOI Law and Regulations

Before making decisions, IM’s must Before making decisions, IM’s must utilize the FOI Law in conjunction with utilize the FOI Law in conjunction with the FOI Regulations for a full the FOI Regulations for a full understanding of:understanding of: The meanings of terms;The meanings of terms; The timelines (3The timelines (3rdrd Party); Party); Fees and Waivers;Fees and Waivers; Forms of Access; Forms of Access; Other duties; andOther duties; and Functions of an Information Manager.Functions of an Information Manager.

Definitions – Chief OfficerDefinitions – Chief Officer

Section 2 of the Regulations define Section 2 of the Regulations define terms used in the FOI Law.terms used in the FOI Law.

““Chief Officer” is defined and this Chief Officer” is defined and this clarifies the person responsible for clarifies the person responsible for performing the Internal Review within performing the Internal Review within your authority. your authority.

Definitions – Personal Definitions – Personal InformationInformation

“personal information” has been amended to allow for a civil servant’s name and position to be considered as the reasonable disclosure of such personal information where the records of an authority contain that information

This has been taken from the Irish FOI Legislation.

No longer required to consult with all former employees of your authority before releasing documents which contain their name / titles.

Removed business address as a form of personal information as this is in the public domain.

This is a non-exhaustive list and as such there may be more information that is personal that is not included in the definition.

Definitions – Public InterestDefinitions – Public Interest

Again, this is a non-exhaustive list and there may be other factors to consider that are in the public interest, yet are not defined in the FOI Regulations.

One public interest consideration in favour of disclosure will always be the general public interest in the publication of government-held documents, in so far as that is conducive to keeping the community informed and promoting public accountability (Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 51-52)

Some considerations against disclosure: Criteria referred to within the exemptions (satisfaction of the basic

criteria of the exemption) Interests of a 3rd Party and fair treatment of individuals Efficient and effective conduct of Government functions Flow of info to law enforcement

Section 3 – Forms of Access Section 3 – Forms of Access

Though it is not mandatory for use, the FOI Unit will be creating an Application Form for Applicants to use should they wish to do so. This will be sent out to all IM’s once the FOI Regulations have been Gazetted.

Place in areas of high foot traffic and provide copies of the form if asked.

Section 7 – Receipt and Section 7 – Receipt and Acknowledgement of RequestsAcknowledgement of Requests

The date of receipt of an FOI Request is the date it has been received by your authority – not the date you receive it.

This request must be passed on to you within 2 working days of it being received – whether by fax, mail, email, delivered, etc.

The clock starts the day after the request has been received by your authority.

You must acknowledge receipt of the request within 10 calendar days of receiving the request.

The letters are provided in the Guidance Manual and are also auto-generated by the IT Tracking System (JADE).

Section 10 – Unreasonable Section 10 – Unreasonable Diversion of ResourcesDiversion of Resources

Must explain how it will divert the resources of an authority and invite the applicant to narrow the scope of their request.

Letter to that effect must be sent.

The clock is paused once you ask for this and will resume when the Applicant narrows their request. The clock does not restart when a narrower scope is received!

This does not apply where the authority is at fault for improper record keeping.

An easy way to calculate this is by using the Excel Spreadsheet provided at the IM Training.

Section 11 & 12 – Notice to 3Section 11 & 12 – Notice to 3rdrd Parties & NotificationParties & Notification

Receive request (acknowledge within 10 days)Receive request (acknowledge within 10 days)

Notify 3Notify 3rdrd Party (within 14 days) Party (within 14 days)

Response from 3Response from 3rdrd Party due (within 28 days) Party due (within 28 days)

Decision if to release the record(s) (within 14 days)Decision if to release the record(s) (within 14 days)

Applicant has 30 days to appeal to the Info CommissionerApplicant has 30 days to appeal to the Info Commissioner

30 day extension if no appeal made30 day extension if no appeal made

Record(s) is released!Record(s) is released!

Section 14 & 15 – Fees & Section 14 & 15 – Fees & WaiversWaivers

Set out in the Schedule.

Can be waived as necessary – procedural decisions on waivers to be made before January 2009.

Ensure your authority is able to accept Fees (determine the methods your authority will accept in January 2009).

Notice of costs (fees) to be sent to the applicant. If they have not paid within 30 days of the Notice, the application shall be deemed withdrawn.

IM’s must remind applicants that payment must be made.

Section 16 – Expedited Section 16 – Expedited ServiceService

Must be requested at the time of application for information.

Record must be produced within 10 calendar days.

The Fee for Expedited Service is $50.00 and is non-refundable.

Fee can be waived if necessary.

Must show a compelling reason for expedited service.

Section 26 – Requests on Section 26 – Requests on behalf of Minorsbehalf of Minors

Child is anyone under 16 years of age.

Parent or Guardian can apply for and be granted access to information relating to that child.

This applies to info routinely granted to a parent by a public authority (i.e. copies of report cards) or if it would not be in the best interests of the child (i.e. counselor's report that relates to the Parent or Guardian)

Thank you.Thank you.

Any questions?Any questions?