Cayman Islands
Name of law: The Freedom of Information Law
First adopted: 2007
First adopted: 2007
Introduction
The Cayman Islands has a strong RTI law, particularly in terms of requesting procedures and appeals. However, there is room for improvement in terms of a few illegitimate exceptions and overbroad or lack proper harm tests. Not every exception has a public interest override to all exceptions, and some public bodies are entirely excluded from the ambit of the law.
Colaborators
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 6 | 10 |
| 2 | Scope | 21 | 30 |
| 3 | Requesting Procedures | 26 | 30 |
| 4 | Exceptions & Refusal | 15 | 30 |
| 5 | Appeals | 24 | 30 |
| 6 | Sanctions & Protections | 7 | 8 |
| 7 | Promotional Measures | 15 | 16 |
| ∑ = 114 | ∑ = 154 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | 122. A law enacted by the Legislature shall provide for a right of access to information held by public authorities, for the conditions for the exercise of that right, and for restrictions and exceptions to that right in the interests of the security of the Cayman Islands or the United Kingdom, public safety, public order, public morality or the rights or interests of individuals. | |
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | 122. A law enacted by the Legislature shall provide for a right of access to information held by public authorities, for the conditions for the exercise of that right, and for restrictions and exceptions to that right in the interests of the security of the Cayman Islands or the United Kingdom, public safety, public order, public morality or the rights or interests of individuals. | |
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | NO | 0 | N/A | Not mentioned |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | Partially | 1 | 4. The objects of this Law are to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely-(a) governmental accountability; (b) transparency; and (c) public participation in national decision-making, by granting to the public a general right of access to records held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | Partially | 1 | 4. The objects of this Law are to reinforce and give further effect to certain fundamental principles underlying the system of constitutional democracy, namely-(a) governmental accountability; (b) transparency; and (c) public participation in national decision-making, by granting to the public a general right of access to records held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information. 6(5) Where the factors in favour of disclosure and those favouring non- disclosure are equal, the doubt shall be resolved in favour of disclosure but subject to the public interest test prescribed under section 26. | Statement in 6(5) is not sufficiently strong to warrant full points. |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | 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. | The Cayman Islands Interpretation Law, 1995 (s.3) clarifies that person ”includes any corporation, either aggregate or sole, and any club, society, association or other body, of one or more persons”. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | Partially | 3 | 2. In this Law- “hold”, in relation to a record that is liable to production under this Law, means in a public authority’s possession, custody or control; “record” means information held in any form including- a record in writing; a map, plan, graph or drawing; a photograph; a disc, tape, sound track or other device in which sounds or other data are embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; any film (including microfilm), negative, tape or other device in which one or more visual images are embodied whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom, | Limited to information in the public authority's custody or control. |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 2. In this Law- “hold”, in relation to a record that is liable to production under this Law, means in a public authority’s possession, custody or control; “record” means information held in any form including- a record in writing; a map, plan, graph or drawing; a photograph; a disc, tape, sound track or other device in which sounds or other data are embodied, whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; any film (including microfilm), negative, tape or other device in which one or more visual images are embodied whether electronically or otherwise, so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom, | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | Partially | 4 | 2. In this Law - “public authority” means- (a) a ministry, portfolio or department; (b) a statutory body or authority, whether incorporated or not; (c) a government company which - (i) is wholly owned by the Government or in which the Government holds more than 50% of the shares; or (ii) is specified in an Order under section 3 (2); (d) any other body or organization specified in an Order under section 3 (2); 3. (1) Subject to subsection (2), this Law applies to- (a) public authorities; (b) records, regardless of the date when they were created; but paragraph (a) shall not be read so as to allow access to records containing information- (c) that may not be disclosed under section 50 of the Monetary Authority Law (2004 Revision); (5) This Law does not apply to-(b) the security or intelligence services (as defined in subsection (8)) in relation to their strategic or operational intelligence-gathering activities;(e) private holdings of the National Archives where the contract or other arrangements under which the holdings are held do not allow disclosure in the circumstances prescribed under this Law. (8) In subsection (5) "security or intelligence services" includes- (a) the Cayman Islands Police Service; (b) the Special Constabulary within the Cayman Islands Police Service; (c) the Department of Customs. | Lost points for the monetory authority, the security services and the intelligence services listed in 3(8) and the archives. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | N/A | The law is a bit unclear on this, but the <a href="http://www.gov.ky/pls/portal/docs/PAGE/GAZHOME/PUBLICATIONS/GAZETTE-SUPPLEMENTS/2013/GS042013_WEB.PDF">website of the Cayman Islands Legislative Assembly</a> make it clear that the FOI law applies to them. |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | Partially | 1 | 3 (5) This Law does not apply to- (a) the judicial functions of- (i) a court; (ii) the holder of a judicial office or other office connected with a court; (6) This Law applies to records of an administrative nature held in a registry or other office of a court. | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 2. In this Law - “public authority” means- (a) a ministry, portfolio or department; (b) a statutory body or authority, whether incorporated or not; (c) a government company which - (i) is wholly owned by the Government or in which the Government holds more than 50% of the shares; or (ii) is specified in an Order under section 3 (2); (d) any other body or organization specified in an Order under section 3 (2); 3. (1) Subject to subsection (2), this Law applies to- (a) public authorities; (b) records, regardless of the date when they were created; but paragraph (a) shall not be read so as to allow access to records containing information- (c) that may not be disclosed under section 50 of the Monetary Authority Law (2004 Revision); (d) relating to the directors, officers and shareholders of a company registered as an exempted company under Part VII or VIII of the Companies Law (2004 Revision); (e) any other class of information which the Governor in Cabinet may, by Order, specify. | Local reviewer has assured as that the clause regarding the Companies Law does not exclude any state-owned enterprises. |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 2. In this Law - “public authority” means- (a) a ministry, portfolio or department; (b) a statutory body or authority, whether incorporated or not; (c) a government company which - (i) is wholly owned by the Government or in which the Government holds more than 50% of the shares; or (ii) is specified in an Order under section 3 (2); (d) any other body or organization specified in an Order under section 3 (2). | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | Partially | 1 | 3 (2) The Governor in Cabinet may after consulting the entity concerned where he considers such consultation appropriate, by Order, declare that this Law shall apply to- (a) such companies, in addition to those specified in paragraph (c) (i) of the definition of “public authority”, as may be specified in the Order; (b) any other body or organization which provides services of a public nature which are essential to the welfare of the Caymanian society, or to such aspects of their operations as may be specified in the Order; (c) any other body or organization which receives government appropriations on a regular basis. | One point given because it does not appear to be mandatory. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | YES | 2 | 6(3) An applicant for access to a record shall not be required to give any reason for requesting access to that record. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | 7. (1) A person who wishes to obtain access to a record shall make an application to the public authority which holds that record. (2) An application under subsection (1)-(a) may be made in writing or transmitted by electronic means other than telephone; (b) shall provide such information concerning the record as is reasonably necessary to enable the public authority to identify it. | |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | 7(2) An application under subsection (1)- (a) may be made in writing or transmitted by electronic means other than telephone; Regs: 3(2) For convenience the Freedom of Information Unit may authorize a form, which an applicant is encouraged to use but need not use, and such form may, in addition to the particulars referred to in Schedule 1, contain such other notes as the Unit may consider necessary or expedient. | No requests via telephone. |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | YES | 2 | 7(3)(a) A public authority to which an application is made shall - upon request, assist the applicant in identifying the records to which the application relates; 11. (1) Where the information provided by the applicant in relation to the record is not reasonably necessary to enable the public authority to identify it, the authority shall afford the applicant a reasonable opportunity to consult with the authority with a view to reformulating the application so that the record can be identified. | |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | Regs 21(i) assist persons who have limited ability to read or write English or with any mental of physical disability; | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | YES | 2 | 7(3)(b) acknowledge receipt of every application made in the prescribed manner; Regs 7.(1) An officer in a public authority to whom an application is given or transmitted shall accept it and pass it to the information manager as soon as practicable but not later than two working days from the date of receiving the application. | |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 8. (1) Where an application is made to a public authority for a record- (a) which is held by another public authority; or (b) the subject-matter of which is more closely connected with the functions of another public authority, the first mentioned public authority shall transfer the application or such part of it as may be appropriate to that other public authority, and shall inform the applicant immediately of the transfer or in such period as may be prescribed in regulations. (2) A transfer of an application pursuant to subsection (1) shall be made as soon as practicable but not later than fourteen calendar days after the date of receipt of the application. | Transfers are made, but are allowed in cases where the information is more closely connected to another authority. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | 10. (1) the following forms- Forms of access (c) compliance with the request would unreasonably divert its resources; (d) if the information requested is already in the public domain. Access to a record may be granted to an applicant in one or more of (a) the applicant may be afforded a reasonable opportunity to inspect the record; (b) the authority concerned may furnish the applicant with a copy of the record; (c) in the case of a record from which sounds or visual images are capable of being reproduced, arrangements may be made for the applicant to hear the sounds or view the visual images; (d) in the case of a record by which or in which words are- (i) recorded in a manner in which they are capable of being reproduced in the form of sound and images; or (ii) contained in the form of shorthand writing or in codified form; the applicant may be furnished with a transcript of the data or the words, sounds and images recorded or contained in that record. (2) Subject to subsection (3), where an applicant requests that access be given in a particular form, access shall be given in that form. (3) A public authority may grant access in a form other than that requested by an applicant where the grant of access in the form requested would- (a) be detrimental to the preservation of the record, or be inappropriate, having regard to its physical state; (b) constitute an infringement of intellectual property rights subsisting in any matter contained in the record. | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | 7(4) A public authority shall respond to an application as soon as practicable but not later than- (a) thirty calendar days after the date of receipt of the application; or (b) in the case of an application transferred to it by another authority pursuant to section 8, thirty calendar days after the date of the receipt by that authority, | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 7(4) A public authority shall respond to an application as soon as practicable but not later than- (a) thirty calendar days after the date of receipt of the application; or (b) in the case of an application transferred to it by another authority pursuant to section 8, thirty calendar days after the date of the receipt by that authority. | |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | 7(4) so, however, that an authority may, for good cause, extend the period of thirty calendar days for a further period, not exceeding one period of thirty calendar days, in any case where there is reasonable cause for such extension. (5) The response of the public authority shall state its decision on the application, and where the authority or body decides to refuse or defer access or to extend the period of thirty calendar days, it shall state the reasons therefor, and the options available to an applicant. | |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 13. (1) The communication of information may be made conditional upon the payment by the person making the request of a reasonable fee which shall not exceed the actual cost of searching for, reproducing, preparing and communicating the information. (2) The Governor in Cabinet may make regulations providing- (a) for the manner in which fees are to be calculated; (b) maximum fees payable, which shall not exceed the cost referred to in subsection (1); (c) that no fee is to be charged in relation to certain cases. | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | 13. (1) The communication of information may be made conditional upon the payment by the person making the request of a reasonable fee which shall not exceed the actual cost of searching for, reproducing, preparing and communicating the information. (2) The Governor in Cabinet may make regulations providing- (a) for the manner in which fees are to be calculated; (b) maximum fees payable, which shall not exceed the cost referred to in subsection (1); (c) that no fee is to be charged in relation to certain cases. | Can charge for time spent searching. |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | YES | 2 | 13. (1) The communication of information may be made conditional upon the payment by the person making the request of a reasonable fee which shall not exceed the actual cost of searching for, reproducing, preparing and communicating the information. (2) The Governor in Cabinet may make regulations providing- (a) for the manner in which fees are to be calculated; (b) maximum fees payable, which shall not exceed the cost referred to in subsection (1); (c) that no fee is to be charged in relation to certain cases. Regs 15. (1) No fee shall be charged where the chief officer or information manager is of the view that the applicant is of inadequate means or for any other good reason. (2) An application for a waiver shall be made in writing to the chief officer or information officer setting out the grounds on which a waiver is requested. | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | YES | 2 | N/A | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | 3(7) Nothing in this Law shall be read as abrogating the provisions of any other Law that restricts access to records. | |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 7 | 11(2) A public authority may defer the grant of access to a record-(c) if the premature release of the record would be contrary to the public interest, until the occurrence of any event after which or the expiration of any period beyond which, the release of the record would not be contrary to the public interest. 54. (1) Nothing in this Law shall be construed as authorizing the disclosure of any official record- (a) containing any defamatory matter; or (b) the disclosure of which would be in breach of confidence or of intellectual property rights. | |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | NO | 0 | 3(5)(d) records that belong to the Government of the United Kingdom of Great Britain and Northern Ireland whether they are created or held in the Cayman Islands or elsewhere and a certificate to that effect issued under the hand of the Governor or the Secretary of State shall not be subject to any judicial or quasi-judicial proceedings ... (b) those records contain information communicated in confidence to the Government by or on behalf of a foreign government or by an international organization. 16(b) affect- (i) the conduct of an investigation or prosecution of a breach or possible breach of the law; or (ii) the trial of any person or the adjudication of a particular case; 17(b)(iii) infringe the privileges of Parliament. 19. (1) Subject to subsection (2), a record is exempt from disclosure if it contains- (a) opinions, advice or recommendations prepared for; (b) a record of consultations or deliberations arising in the course of, proceedings of the Cabinet or of a committee thereof. (2) Subsection (1) does not apply to records which contain material of a purely factual nature or reports, studies, tests or surveys of a scientific or technical nature. | |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 2 | 26. (1) Notwithstanding that a matter falls within sections 18, 19 (1) (a), 20 (b), (c) and (d), 21, 22, 23 and 24, access shall be granted if such access would nevertheless be in the public interest. | Override applies to about half of the exceptions. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | 6(2) The exemption of a record or part thereof from disclosure shall not apply after the record has been in existence for twenty years unless otherwise stated in this Law. 22. (1) Subject to subsections (2), a record is exempt from disclosure if its disclosure would, or could reasonably be expected to result in the destruction of, damage to, or interference with, the conservation of- (a) any historical, archaeological or anthropological resources; (b) anything which is eligible for placement on the Heritage Register under section 21 of the National Trust Law (1997 Revision) or any other law relating to the preservation of the heritage of the Islands; (c) any species of plant or animal life so designated or which is endangered, threatened or otherwise vulnerable; (d) any other rare or endangered living resource. (2) Records relating to subsection (1) (a) and (b) shall be exempt for seventy-five years. 21(3) Records relating to personal information shall be exempt without limitation as to time. | |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | Partially | 1 | 11. (1) Where an information manager intends to give access to a record which he believes contains personal information, he shall, within fourteen calendar days of receipt of the application, send the third party written notice of the application for access. (2) If the third party does not respond within the time specified in paragraph (5) or the information manager is not satisfied that the communication has reached the third party, he shall make such further attempts as are practicable to contact the third party by other feasible means of communication such as telephone, fax or e-mail until he is so satisfied. (3) The information manager may, in exercise of the powers contained in section 7 (4), extend the period for decision making. (4) If no access is intended to be given to a record that contains personal information no notice shall be given to a third party. (5) The notice shall- (a) state that a request has been made by an applicant (without naming him) for access to a record containing personal information about the third party; (b) describe the contents of the request and record concerned; (c) state that, within twenty-eight calendar days from the date of notice (and the notice shall be dispatched on the date of the notice), the third party may, in writing, consent to the disclosure or may make written representations to the public authority explaining why the information should not be disclosed; and (d) state that a decision will be made within fourteen calendar days from the expiry of the twenty-eight calendar days whether or not to give the applicant access to the record or from the date a response is received from the third party if earlier. | Relatively good procedures, but it looks like the appeals process can drag response times out. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | 12. (1) Where an application is made to a public authority for access to a record which contains exempt matter, the authority shall grant access to a copy of the record with the exempt matter deleted therefrom. (2) A public authority which grants access to a copy of a record in accordance with this section shall inform the applicant- (a) that it is such a copy; and (b) of the statutory provision by virtue of which such deleted matter is exempt matter. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 7(5) The response of the public authority shall state its decision on the application, and where the authority or body decides to refuse or defer access or to extend the period of thirty calendar days, it shall state the reasons therefor, and the options available to an applicant. | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | 33(1) An applicant for access to a record may, subject to subsection (4), apply for an internal review of a decision by a public authority to- (a) refuse to grant access to the record; (b) grant access only to some of the records specified in an application; (c) defer the grant of access to the record; (d) charge a fee for action taken or as to the amount of the fee. (2) And subject to subsection (4), apply for a review of a decision by a public authority to refuse to make that amendment or annotation. (3) For the purposes of subsections (1) and (2), a failure to give a decision on any of the matters referred to in subsection (1) (a) to (c) or to amend or annotate a personal record within the time required by this Law shall be regarded as a refusal to do so. (4) An application under subsection (1) or (2) may only be made where the decision to which the application relates was taken by a person other than the Minister responsible, a chief officer or the principal officer of the public authority concerned. applicant for amendment or annotation of a personal record may, but no review shall be conducted by the same person who made the decision or a person junior in rank to him. 34(1) An internal review shall be conducted-(a) by the responsible Minister in relation to records referred to in sections 15, 16 and 18; (b) in any other case, by the chief officer in the relevant ministry or the principal officer of the public authority whose decision is subject to review, (2) An application for internal review shall be made-(a) within thirty calendar days after the date of a notification (in this subsection referred to as “the initial period”) to the applicant of the relevant decision, or within such further period, not exceeding thirty calendar days, as the public authority may permit; or (b) where no such notification has been given, within thirty calendar days after the expiration of the period allowed for the giving of the decision or of any other period permitted by the authority. A person who conducts an internal review- (a) may take any decision in relation to the application which could have been taken on an original application; (b) shall take that decision within a period of thirty calendar days after the date of receipt of the application. | No timelines. Also, the process is mandatory. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | Partially | 1 | 25(3) Where a certificate is issued under subsection (1) under the hand of the Governor, it shall be conclusive that the record is exempt and no judicial proceedings or quasi-judicial proceedings of any kind shall be entertained in relation thereto. 42. (1) A person who has made a request for a record and has exhausted the other means of redress provided for under this Law except this section may in writing apply to the Commissioner. but no review shall be conducted by the same person who made the decision or a person junior in rank to him. 34(1) An internal review shall be conducted-(a) by the responsible Minister in relation to records referred to in sections 15, 16 and 18; (b) in any other case, by the chief officer in the relevant ministry or the principal officer of the public authority whose decision is subject to review, (2) An application for internal review shall be made-(a) within thirty calendar days after the date of a notification (in this subsection referred to as “the initial period”) to the applicant of the relevant decision, or within such further period, not exceeding thirty calendar days, as the public authority may permit; or (b) where no such notification has been given, within thirty calendar days after the expiration of the period allowed for the giving of the decision or of any other period permitted by the authority. A person who conducts an internal review- (a) may take any decision in relation to the application which could have been taken on an original application; (b) shall take that decision within a period of thirty calendar days after the date of receipt of the application. | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | Partially | 1 | 35(3) The Commissioner shall hold office for a term of five years or such shorter term as may be determined at the time of appointment, and may be re- appointed to serve a maximum of two terms, but may be removed at any time by the Governor in Cabinet. | No security of tenure, but appointments procedure in the regulations is relatively good. |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | Partially | 1 | 36(2) In the exercise of his powers, the Commissioner shall be responsible to the Legislative Assembly. | Reports to the Legislature, no mention of budget. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | Partially | 1 | 35(2) No-one may be appointed Commissioner if he- (a) holds office in, or is an employee of a political party, or holds an elected or appointed position in central or local government, elective or otherwise; … (5) The Governor in Cabinet may terminate the appointment of the Commissioner if he- (a) becomes of unsound mind or becomes permanently unable to perform his functions by reason of ill health; (b) becomes bankrupt or compounds with or suspends payment to his creditors; (c) is convicted and sentenced to a term of custodial imprisonment; (d) is convicted of any offence involving dishonesty; (e) fails to carry out the functions conferred or imposed on him by this Law. | |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | 45. (1) In coming to a decision pursuant to section 43 or 44, the Commissioner shall have the power to conduct a full investigation, including by issuing orders requiring the production of evidence and compelling witnesses to testify; in the exercise of this power he may call for and inspect an exempt record, so however, that, where he does so, he shall take such steps as are necessary or expedient to ensure that the record is inspected only by members of staff of the Commissioner acting in relation to that matter. (2) The Commissioner may, during an investigation pursuant to sub- section (1), examine any record to which this Law applies, and no such record may be withheld from the Commissioner on any grounds unless the Governor, under his hand, certifies that the examination of such record would not be in the public interest. | No inspection powers. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | 48. Upon expiry of the forty-five day period for appeals referred to in section 47, the Commissioner may certify in writing to the court any failure to comply with a decision made under section 43 or 44, or an order under section 45, and the court may consider such failure under the rules relating to contempt of court. | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | 42(4) On the consideration of an appeal, the Commissioner- (a) may, subject to paragraph (b), make any decision which could have been made on the original application; (b) shall not nullify a certificate issued under section 25. | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | Partially | 1 | 25(3) Where a certificate is issued under subsection (1) under the hand of the Governor, it shall be conclusive that the record is exempt and no judicial proceedings or quasi-judicial proceedings of any kind shall be entertained in relation thereto. 47(1) The complainant, or the relevant public or private body, may, within 45 days, appeal to the Grand Court by way of judicial review of a decision of the Commissioner pursuant to section 43 or 44, or an order pursuant to section 45 (1). (2) In any appeal from a decision pursuant to section 43, the burden of proof shall be on the public authority to show that it acted in accordance with its obligations under the law. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | No lawyer required according to: http://www.infocomm.ky/images/ICO%20FAQs%2020140-07-15.pdf. Website implies no fees. | Not mentioned, but it is likely the case that the indicator has been satisfied. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | 42(1) A person who has made a request for a record and has exhausted the other means of redress provided for under this Law except this section may in writing apply to the Commissioner for a decision that a public authority has- (a) failed to indicate whether or not it holds a record;(b) failed to communicate the information contained in a record within the time allowed by this Law or at all; (c) failed to respond to a request for a record within the time limits established in this Law; (d) failed to provide a notice in writing of its response to a request for a record; (e) charged a fee that is in contravention of this Law; or (f) otherwise failed to comply with an obligation imposed under this Law.(2) An appeal - (a) shall be made within thirty calendar days after the date of the notification to the appellant of the relevant decision or of the decision taken on an internal review; or (b) shall, where no notification has been given, be given within the period required by this Law, within thirty calendar days after the expiration of that period. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | 43(1) [The Commissioner shall] under the relevant section of this Law as soon as is reasonably practicable, and in any case within thirty calendar days, after giving both the complainant and the relevant public authority an opportunity to provide its views in writing, but the Commissioner may, for good cause, extend this period for one further period not exceeding thirty calendar days so long as before the expiry of the first period of thirty calendar days he gives written notice to the parties as to why the period has to be extended. | |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | YES | 2 | 43(2) In any appeal under section 42, the burden of proof shall be on the public or private body to show that it acted in accordance with its obligations under this Law. | |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | 44(2) In his decision pursuant to subsection (1), the Commissioner may require the public authority to take such steps as may be necessary or expedient to bring it into compliance with its obligations under the Law, and in exercise of this power, may- (a) order the publishing of certain information or categories of information; (b) recommend the making of certain changes to the practices of the public authority concerned in relation to the keeping, management and destruction of records, and the transfer of records to the national archives, but such recommendations shall not be at variance with any law for the time being in force in relation to such matters; (c) recommend the provision of training to the public authority’s officials on the right of access to records; or (d) refer a matter to the appropriate disciplinary authority where there has been an egregious or wilful failure to comply with an obligation under this Law. | |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | 55(1) A person commits an offence, if in relation to a record to which a right of access is conferred under this Law, he- (a) alters or defaces; (b) blocks or erases; (c) destroys; or (d) conceals, the record with the intention of preventing its disclosure. (2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.the record with the intention of preventing its disclosure. (2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | YES | 2 | 44(2) In his decision pursuant to subsection (1), the Commissioner may require the public authority to take such steps as may be necessary or expedient to bring it into compliance with its obligations under the Law, and in exercise of this power, may- (a) order the publishing of certain information or categories of information; (b) recommend the making of certain changes to the practices of the public authority concerned in relation to the keeping, management and destruction of records, and the transfer of records to the national archives, but such recommendations shall not be at variance with any law for the time being in force in relation to such matters; (c) recommend the provision of training to the public authority’s officials on the right of access to records; or (d) refer a matter to the appropriate disciplinary authority where there has been an egregious or wilful failure to comply with an obligation under this Law. | |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | Partially | 1 | 41(1) Neither the Commissioner nor any member of staff of his office shall be liable in damages for anything done or omitted in the discharge of their respective functions under this Law unless it is shown that the act or omission was in bad faith.(2) For the purposes of the law of libel or slander, anything said or any record supplied pursuant to an investigation under this Law is privileged, unless that record is shown to have been said or supplied maliciously. 56. (1) Where access to a record is granted in accordance with this Law, the person who authorizes such access and any other person concerned in the granting thereof shall not, by reason only of so doing, be guilty of a criminal offence. (2) Any person who contravenes this Law shall not be protected against any law relating to official secrets. | |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | 50(1) No person may be subject to any legal, administrative or employment- related sanction, regardless of any breach of a legal or employment-related obligation, for releasing information on wrong-doing, or that which would disclose a serious threat to health, safety or the environment, as long as he acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrong-doing or a serious threat to health, safety or the environment. (2) For the purposes of subsection (1), “wrongdoing” includes but is not limited to- (a) the commission of a criminal offence; (b) failure to comply with a legal obligation; (c) miscarriage of justice; or (d) corruption, dishonesty, or serious maladministration. | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | 49. (1) Every public authority shall appoint an information manager who, in addition to any duties specifically provided for under this Law, shall, under the general and specific supervision of the head of the authority concerned,- (a) promote in the public authority best practices in relation to record maintenance, archiving and disposal; and (b) receive requests for records, assist individuals seeking access to records, paying special attention to people with relevant disabilities, and receive complaints regarding the performance of the public authority relating to information disclosure. | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | 39(e) publicise the requirements of this Law and the rights of individuals under it. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | 39(e) publicise the requirements of this Law and the rights of individuals under it. | |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | 49(1) Every public authority shall appoint an information manager who, in addition to any duties specifically provided for under this Law, shall, under the general and specific supervision of the head of the authority concerned,- (a) promote in the public authority best practices in relation to record maintenance, archiving and disposal; and 52. (1) facilitates access to information under this Law and in accordance with the code of practice provided for in subsection (3). (3) The Chief Secretary shall, after consultation with interested parties and upon the recommendation of the Director of National Archives, issue from time to time a code, which shall contain the practices relating to the keeping, management and disposal of records, as well as the transfer of records to the National Archives. | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | Partially | 1 | Schedule 1: 1. The information referred to in section 5 of this Law is-(d) a statement of the records specified in subparagraph (e) being records that are provided by the public authority for the use of, or which are used by the authority or its officers in making decisions or recommendations, under or for the purposes of, an enactment or scheme administered by the authority with respect to rights, privileges or benefits, or to obligations, penalties or other detriments, to or for which persons are or may be entitled or subject; (e) the records referred to in subparagraph (d) are-(i) manuals or other records containing interpretations, rules, guidelines, practices or precedents; (ii) records containing particulars of a scheme referred to in paragraph (d), not being particulars contained in an enactment or published under this Law. | |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | 53. Every public authority shall ensure that training is provided for its officials regarding the right to information and the effective implementation of this Law. | |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | 40(1)(a) a report of the operation of this Law during the year, containing the matters specified in subsection (2) and may from time to time submit such other reports as he thinks appropriate;(b) audited accounts. (2) The matters referred to in subsection (1) are those relating to compliance by the Commissioner’s office with this Law and otherwise relating to the activities of his offices including but not limited to- (a) the number of applications for access received, granted, deferred, refused or granted subject to deletions; (b) the categories of exemptions claimed and the numbers of each category; (c) the number of applications received for- (i) amendment of personal records; (ii) annotation of personal records; (d) the number of- (i) applications for internal review of relevant decisions; (ii) appeals against relevant decisions, and the rate of success or failure thereof. (3) A public authority shall from time to time and in any case by the end of the year send to the Commissioner a written report containing the details contained in subsection (2) to the extent that such information is in their custody or control. | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | 40(1)(a) a report of the operation of this Law during the year, containing the matters specified in subsection (2) and may from time to time submit such other reports as he thinks appropriate;(b) audited accounts. (2) The matters referred to in subsection (1) are those relating to compliance by the Commissioner’s office with this Law and otherwise relating to the activities of his offices including but not limited to- (a) the number of applications for access received, granted, deferred, refused or granted subject to deletions; (b) the categories of exemptions claimed and the numbers of each category; (c) the number of applications received for- (i) amendment of personal records; (ii) annotation of personal records; (d) the number of- (i) applications for internal review of relevant decisions; (ii) appeals against relevant decisions, and the rate of success or failure thereof. (3) A public authority shall from time to time and in any case by the end of the year send to the Commissioner a written report containing the details contained in subsection (2) to the extent that such information is in their custody or control. |
