GOVERNMENT ORDERED TO RELEASE SMITH BARCADERE PROJECT DOCUMENTS

The Cayman Islands Ombudsman has directed that the government should release a previously withheld extract of a Cabinet decision regarding the suspended Smith Barcadere (Smith Cove) Redevelopment Project.

The ruling follows an investigation by the Ombudsman after an applicant using a Freedom of Information (FOI) request was denied access to various records related to the government project to develop the area.

A request to release an extract of Cabinet minutes related a decision by the project's governing body regarding an exemption to planning permission should be granted, had also been rejected by the government.

The project to develop the popular Smith Barcadere (Smith Cove) beach area followed the government’s purchase of the property in 2016, and included plans for additional restrooms, parking spaces and lighting.

It was due to start in March 2020 at an estimated cost of over a million dollars but was suspended after protests by residents opposed to the plans.

Ombudsman Sandy Hermiston ruled that the government was wrong to deny the initial FOI request, by stating that the extract was a record of deliberations arising in the course of Cabinet proceedings.

It was also found that The Cabinet Office did not conduct an internal review of the request as required by the FOI Act, which resulted in the applicant appealing the matter directly to the Ombudsman.

“The contested record in this appeal hearing was the extract, an excerpt of the Cabinet minutes in relation to this project, not the full record of the meeting minutes,” the Ombudsman Hermiston stated.

She said, “The Cabinet Office did not conduct an internal review of the request as required by the FOI Act, which allowed the applicant to appeal the matter directly to the Ombudsman.

It was also pointed out that the contested record in this appeal hearing was the extract, an excerpt of the Cabinet minutes in relation to this project, not the full record of the meeting minutes.

In reviewing the extract, the Ombudsman found “it does not document any Cabinet discussion, does not show how Cabinet reached its decision, does not state any matters being considered in that decision and gives no details of Cabinet members’ discussions.”

These issues, the ruling states, are important in determining whether the section 19 exemption of the FOI Act would apply. The Ombudsman found the wording of the section 19 exemption focuses on consultative or deliberative processes of Cabinet.

Moreover, it noted that the Cabinet decision was already a matter of public record, as it had been reported in the local media.

Additionally, it was pointed out that the Cayman Islands Development and Planning Act requires any granted exemption from planning permission to be listed in the Cayman Islands Gazette, a public document.

The ruling states that: “The Ombudsman found no evidence that gazettal of this decision occurred. However, if the project were exempted from planning requirements the Act would have required that decision to be made public.”

“The FOI Act is in place to promote government openness and transparency and decisions made under this legislation should give due regard to that fact,” said Ombudsman Hermiston.

A further finding is that the Cabinet Office violated provisions of the FOI Act when it failed to conduct an internal review of its original decision to deny release of the extract as requested.

The Ombudsman ruled that the extract from the Cabinet minutes containing information on whether Cabinet granted planning exemptions in relation to the Smith Barcadere Redevelopment Project is not exempt under the relevant law.

She ordered that the Cabinet Office must disclose the extract related to this decision.