The Freedom of Information Law of the Cayman Islands as currently in force provides to members of the public a general right of access to the records of a public authority other than an exempt record. What is a "public authority" for these purposes? When we look at the answer to this question surprising legal possibilities arise which can have some practical consequences for a variety of local companies.
We begin by reviewing the definition of "public authority" in section 2 of the Law. This definition states that "public authority" means:-
"(a) a ministry, portfolio or department;
(b) a statutory body or authority, whether incorporated or not;
(c) a government company which -
- is wholly owned by the Government or in which the Government holds more than 50% of the share; or
- is specified in an Order under section 3(2);
(d) any other body or organization specified in an Order under section 3(2)."
While paragraph (a) and paragraph (b) are essentially self-explanatory, both paragraphs (c) and (d) require some further analysis.
In particular, paragraph (c) relates to a government company, which is wholly owned by the government or in which the government owns more than 50%, or to a government company which is specified in an Order under section 3(2) of the Law. Under this latter category, it can reasonably be inferred that there may be some other companies in which the Government holds 50% or less than 50% of the shares or even a miniscule shareholding or perhaps no shareholding and which the Governor in Cabinet may decide should nonetheless be treated as a "public authority" and shall so declare by Order.
In other words, companies within paragraph (c)(i) are necessarily defined as government companies, whereas companies where the government's shareholding is 50% or less than 50% or even perhaps no shareholdings may be so "specified" by Order of the Governor-in-Cabinet in accordance with paragraph (c)(ii).
Furthermore, paragraph (d) relates only to "any other body or organization" specified in an Order under section 3(2). There is no extended definition that includes companies at all in this additional category. Thus it can be reasonably inferred that there are bodies and organizations other than companies (whether government companies or any other companies) also coming within the ambit of the statute.
The overall intent of the definition provision in the Law should be to define a variety of governmental and quasi-governmental institutions and companies, (rather than simply including private companies and institutions), in whose records the general public, as citizens, residents and/or tax payers have a legitimate interest in obtaining access, even though these limits are not quite as clearly set out as they might be.
Section 3 of the Law does not further deal with any definitions, but rather deals with the application of the Law, as the side note affirms ("Application"). Section 3(2), which is the relevant subsection, states:
"(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-
- such companies, in addition to those specified in paragraph (c)(i) of the definition of "public authority", as may be specified in the Order;
- 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;
- any other body or organization which receives government appropriations on a regular basis."
Although section 3(2)(a) enables the Governor in Cabinet to declare that this Law shall apply to such companies, as may be specified in addition to those government companies in paragraph (c)(i) of the definition of "public authority", it must be remembered that paragraph (c)(i) only pertains to a "government company" in the first place. Arguably the definition of a government company has therefore been expanded as widely as possible.
Section 3(2)(b) then goes on to include in the application of the Law 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. Once again, there is no extended definition here that includes companies at all. One would suggest that the Fire Service and the Police Service would be relevant examples of such a body or organization.
It should also be noted that under section 3 (2)(c) the Law may be made applicable by the Governor in Cabinet to any other body or organization which receives government appropriations on a regular basis.
This last inclusion is of particular interest, in that the broader scheme of the Law would appear to extend intentionally to those various entities which in whole or in part are either financed by or are otherwise in receipt of some form of public funding. While funding of this nature will no doubt be recognized as socially desirable, nonetheless it may well come as a surprise to such entities that they thereby could become subject to this wide-ranging statutory scheme. This category of entities would include charities, for example.
In this broad context, section 4 of the Law, which sets out the "Objects of the Law", makes eminent good sense in that it states as follows:
"4. The objects of this Law are to reinforce and give further effect to certain fundamental principles underlyng 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 record held by public authorities, subject to exemptions which balance that right against the public interest in exempting from disclosure governmental, commercial or personal information."
While private companies in general are outside the scope of the Law, private companies in which the Government has any shareholding or even no shareholding may nonetheless come within the statute if so specified, as we have seen.
Furthermore, in the case of other bodies or organizations which receive government appropriations on a regular basis, the Law may be made applicable to them as well, as we have also seen.
By way of a practical example once again, should the Government decide to purchase even a very small shareholding in a local company which provides internet services, or telephone services, that company could be specified as a public authority under section 3(2)(a). In that way, an entire body of internal information conceivably could become accessible to the general public as a practical consequence.
In conclusion, it may be some time before the broader dimensions and broader applications of the Freedom of Information Law become fully recognized and understood. In the meantime, a wider discussion of the public policy implications of this legislation is surely appropriate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.