Exemptions, Exclusions and Severance
Certain documents are exempt or excluded from the Freedom of Information Law and may not be disclosed to the public.
Exemptions are detailed in Part III of the Freedom of Information Law, 2007, and examples include documents that may endanger a person's life or safety or have a substantial adverse affect on the Caymanian economy.
A refusal must be based on an exemption and the public authority must justify why it thinks the information is exempt from your general right to receive it. You should not be put off applying just because you think information may be exempt. Even if the information falls within one of the exemptions in the Law, the public authority may still be willing to let you have all or part of it.
Generally, exemptions from disclosure do not apply after the record has been in existence for 20 years. After this time most documents are freely available (s.6(2)). However, the exemption for an unreasonable disclosure of personal information is without limitation of time and the exemption for disclosure of information which could result in damage to or destruction of historical, archaeological or anthropological resources is seventy five years.
A Certificate of Exemption may be issued by the Governor or a Minister for refusals that cite exemption due to matters of security, defence, international relations, law enforcement, effective conduct of public affairs and heritage sites. A certificate of exemption issued by a Minister removes the right to an independent review by the Information Commissioner. A certificate of exemption issued by the Governor removes the right to appeal through judicial or quasi-judicial proceedings (s.25).
The exemption rule applies when the disclosure of a document might
- prejudice security, defence or international relations,
- violate confidentiality of information given by a foreign government or international organisation,
- endanger a person's life or safety; disclose a confidential source; reveal procedures of law enforcement agencies for detecting or investigating invasions of the law where the disclosure will prejudice the effectiveness of the procedures; facilitate the escape of a person from detention or jeopardise prison security,
- jeopardise legal professional privilege or cause an actionable breach of confidence; amount to a contempt of court or infringement of parliamentary privilege,
- have a substantial adverse effect on the Caymanian economy or the Government's ability to manage the economy,
- reveal "trade secrets" or compromise a person's/company's commercial interests or reduce the value of its commercial information,
- prejudice the collective responsibility of Ministers; inhibit the free exchange of views; amount to legal advice of the Attorney General; prejudice the conduct of public affairs,
- destroy, damage or interfere with the conservation of historical or archaeological resources, including any species of plant or animal, rare or endangered.
The Law also exempts
- unreasonable disclosure of personal information,
- disclosure that would endanger someone's physical or mental health or safety,
- opinions, advice or recommendations prepared for Cabinet and records of consultations or deliberations of Cabinet.
The "public interest test" applies to a number of these exemptions and requires the Information Manager to determine whether information which is exempt should be released in the public interest. Most of the exemptions require a standard to be assessed, i.e. they require the assessment of "reasonableness" or "prejudice." For example, records relating to law enforcement are exempt from disclosure if their disclosure would or could reasonably be expected to endanger any person's life or safety.
Some categories of information are completely excluded from your right to access. The following information is excluded from the Freedom of Information Law:
- documents prepared for court cases,
- documents that relate to the judicial functions of a judge,
- documents protected under Section 50 of the Monetary Authority Law,
- documents relating to directors, officers and shareholders of a company protected under Part VII or Part VIII of the Companies Law (2004 Revision),
- documents containing information about security or intelligence services in relation to strategies or operational intelligence gathering activities,
- documents that belong to the Government of the United Kingdom,
- private holdings of the National Archives.
Public authorities can grant partial access to a section or sections of a document and sever the exempt parts (s.12).
Last Updated: 2008-11-20