Defining 'public authority'
Application
Comment
The Freedom of Information Law gives members of the public a general right of access to records held by public authorities (other than exempt records). But what is a 'public authority' for these purposes? The answer to this question raises some surprising legal possibilities, which can have practical consequences for a variety of local companies.
Section 2 of the law defines 'public authority' as:
"(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 share; 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)."
While Sections 2(a) and (b) are self-explanatory, Sections 2(c) and (d) require some further analysis.
In particular, Section 2(c) relates to a government company either wholly owned by the government or in which the government owns more than 50%, or to a government company specified in an order under Section 3(2) of the law. It can reasonably be inferred that the second category may cover some companies in which the government holds 50% or less of the shares, or even no shares, but which the governor may decide should be treated as a public authority, and shall so declare by order. In other words, companies that fall within Section 2(c)(i) are necessarily defined as 'government companies', whereas companies in which the government's shareholding is 50% or less, or nothing, may be so specified by order of the governor in accordance with Section 2(c)(ii).
Furthermore, Section 2(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 in this additional category. Thus, it can reasonably be inferred that bodies and organisations other than companies (whether government or other) also fall within the ambit of the statute.
The overall intention of the definition 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 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 deals with the application of the law. Section 3(2) 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-
(a) 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."
Although Section 3(2)(a) enables the governor to declare that the law shall apply to such companies as may be specified in addition to the government companies listed in in Section 2(c)(i) of the definition of 'public authority', Section 2(c)(i) pertains only to a government company. Arguably, the definition of a 'government company' has therefore been expanded as widely as possible.
Section 3(2)(b) then goes on apply the law to any other body or organisation which provides services of a public nature that are essential to the welfare of Cayman society, or to such aspects of their operations as may be specified in the order. Once again, there is no extended definition here.
Under Section 3(2)(c), the law may be made applicable by the governor to any other body or organisation which receives government appropriations on a regular basis. This last inclusion is of particular interest as the broader scheme of the law would appear to extend to those entities which, in whole or in part, either are financed by or are otherwise in receipt of public funding. While funding of this nature is socially desirable, it may well come as a surprise to such entities that they could thereby become subject to this wide-ranging statutory scheme. This category of entities would include, for example, charities.
In this broad context, Section 4 of the law makes good sense as 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 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."
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 fall within the statute if so specified (as seen above). Furthermore, the law may also apply to other bodies or organisations which receive government appropriations on a regular basis.
By way of another practical example, should the government decide to purchase even a small shareholding in a local company which provides, for example, internet services, that company could be specified as a public authority under Section 3(2)(a). Thus, an entire body of internal information could become accessible to the general public.
It may be some time before the broader application of the Freedom of Information Law becomes fully recognised and understood. In the meantime, a wider discussion of the public policy implications of this legislation is appropriate.
For further information on this topic please contact Robin J McMillan at Appleby by telephone (+1 345 814 2067), fax (+1 345 949 4901) or email ([email protected]).