(CMR) The Office of the Ombudsman is advising organizations to preserve records whenever a Freedom of Information (FOI) request is made. This advice was issued after the Ombudsman found during an FOI appeal that a Zoom recording of a court proceeding was deleted after the request for the video was made.
According to a release from the Office of the Ombudsman, a Freedom of Information applicant sought access to a video recording of a court proceeding, which the applicant argued was an administrative record of the court rather than a judicial record. The FOI Act does not apply to judicial records.
In reviewing the FOI appeal, the Ombudsman found the video recordings of the court proceedings, done on the Zoom platform, were judicial records and, therefore, not subject to the Act under section 3(5)(a)(i). The Ombudsman found that the recordings were an integral part of the court proceedings, and while records may be created, copied, transcribed, analyzed, and used by court administrative staff, that process does not change the judicial nature of the recordings.
However, during the FOI appeal, it was determined that no record existed for the Ombudsman to review in relation to the FOI request because the Zoom platform had already deleted the last recording, and the judicial administration office no longer had access to it. The Ombudsman found there were significant delays in communicating the fact of this deletion to the FOI applicant.
“The important point here is not that no record exists today, as the judicial administration indicated, but that the responsive record did exist at the time the (FOI) request was made, and it appears to have been deleted after the applicant made his request under (the Act),” Ombudsman Sharon Roulstone wrote in her appeal decision.
“As soon as the judicial administration became aware of the FOI request, it should have taken immediate steps to prevent the destruction of the responsive recording. This is so whether or not the judicial administration thought that the recording represented a judicial function and that the FOI Act would not apply to it. It is the Ombudsman who has the power to decide if a record falls under the jurisdiction of (the Act), and until that question is settled, a public authority is duty-bound to preserve the responsive record,” Ms. Roulstone explained.
The Ombudsman made the following recommendations to the judicial administration office as a result of the FOI appeal hearing decision:
-The judicial administration should seek the assistance of the Cayman Islands National Archive in order to ensure its compliance with the legal requirements for the management, retention, and disposal of the records in its custody and control under the National Archives and Public Records Act (NAPRA).
-The judicial administration should develop and implement internal procedures for instigating a legal hold in respect of records requested under the FOI Act and in other appropriate circumstances.
The Ombudsman’s office will monitor the implementation of these recommendations.
Anyone wishing to appeal a government decision of an FOI request may contact the Office of the Ombudsman via phone at 946-6283 or via email at [email protected]. Our website, www.ombudsman.ky, also has much more information about the open records process in the Cayman Islands.