FOI Requests and the Public Domain Aubrey Bodden, Acting Policy Analyst Freedom of Information Unit IM Network Meeting 20th July 2010 Presentation Goals  Outline requirements of the.

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Transcript FOI Requests and the Public Domain Aubrey Bodden, Acting Policy Analyst Freedom of Information Unit IM Network Meeting 20th July 2010 Presentation Goals  Outline requirements of the.

FOI Requests and
the Public Domain
Aubrey Bodden, Acting Policy Analyst
Freedom of Information Unit
IM Network Meeting
20th July 2010
Presentation Goals
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Outline requirements of the FOI Law
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Define “Public Domain”
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Discuss alternate forms of access
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Explain how to “refuse” these requests
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Identify what constitutes an FOI request
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Highlight your publication scheme
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Remind you to sensitise your staff
s. 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
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?
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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?
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“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
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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
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If a requested record is only available
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to certain people,
under certain circumstances,
in particular formats, or
following specific procedures
that record is not in the public domain
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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?
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Police clearance certificates
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Inspecting the shipping registry
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Hard copies of Immigration letters
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Birth, death, marriage certificates
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Official copies of accident reports
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Court searches
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Physical copies of gazettes or laws
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Audio recordings of radio shows
So what do I need to know?

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
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
The following Cayman Islands laws contain
specific provisions which allow access to
information in an alternative form (as of 2008)
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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
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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
What else should I consider?
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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
Do I still treat it as a Freedom
of Information request?
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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
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Acknowledgement
Formal letters
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Mandated timelines
Updating JADE
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Record delivery
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Transfers
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Manual files
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Disclosure log
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Reporting
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…………
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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
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Explain how to access
the record/information
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Detail any fees and/or
restrictions that may
apply (and the reason)
 Include a copy of the record or direct
website link if available and possible
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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?
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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
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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?
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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
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Complete the correspondence history
Record the outcome (with remarks)
Close the electronic file (promptly)
Include this information in your reports
JADE Outcomes
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Information in the Public Domain
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Information otherwise available
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DO NOT use granted in full
What if I’m wrong?
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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
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May direct the applicant back to the public authority
How can I avoid mistakes?
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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?
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That is not what FOI is for! Also, it would
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Decrease efficiency
Increase bureaucracy and costs
Encourage the public to misuse FOI
Further misunderstandings about FOI
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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?
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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 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
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
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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)
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Is it an FOI Request? - No
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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.
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NO – JUST BECAUSE…
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Another staff member thinks you should
deal with it because you’re the IM
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Another public authority transferred it
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It came in on an FOI application form
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It is addressed to the Information Manager
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It mentions “Freedom of Information”
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It came in to the FOI email
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Your Chief Officer told you to
Remember –
Requests are for Records…
… Not Answers to Questions
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
Ensure that FOI Requests are Always
Answered with Records
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Don’t just answer the applicant’s question
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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 open
11 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?
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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?
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All Information Managers should ensure
that all public authority employees are
aware of the requirements of the FOI Law
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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
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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?