OCC is allowed to get phone records

A Cayman Islands Grand Court judge has ruled that a government watchdog agency can obtain the phone records of private citizens and non-governmental entities in the course of its investigations.

The Office of the Complaints Commissioner made a request in May for the telephone records of a private citizen, including the incoming and outgoing calls of the Cable and Wireless telephone service subscriber. Acting Complaints Commissioner Susan Duguay wrote in a letter to the phone company that OCC made the request as part of its investigation of ‘an allegation that information has been improperly leaked from a government entity.’

The request focused on calls from and to the private citizen’s number between December 2007 and January 2008. Complaints Commissioner John Epp has declined to discuss any further details of the case.

Cable and Wireless officials, after consulting Cayman’s Information and Communications Technology Authority, were not certain about whether the company should comply with the commissioner’s request. The OCC asked the court to render an opinion on whether the Complaints Commissioner Law (2005) enabled access to the information.

‘It can hardly be doubted that the commissioner is authorised to compel a non-governmental (private) entity to disclose private and confidential information concerning one of its customers, even though that customer is not employed in the government service,’ wrote Justice Alexander Henderson in his decision on the matter.

Justice Henderson added that the commissioner was not entirely unaccountable for these requests.

‘Certain of his decisions may be judicially reviewed by this court,’ Mr. Henderson wrote, leaving open the question of whether OCC officials must divulge the nature of their investigations to the parties from which they are requesting information.

Generally, Justice Henderson agreed that the Complaints Commissioner Law was written broadly by the Legislature and was intended to be given a liberal interpretation. The law states that the OCC has the same powers as the Grand Court in summoning and examining witnesses and documents.

‘None of this supports interpreting the enabling legislation within a narrow compass,’ the Justice wrote.

Mr. Epp said he was satisfied the court had clarified the power of his agency to obtain private records, while maintaining the individual’s right to privacy.

‘The Complaints Commissioner Law prohibits the OCC from disclosing confidential information obtained in the course of an investigation,’ Mr. Epp said. ‘Therefore, while this office can obtain such records, the public’s privacy is protected.’

The law governing electronic communications in Cayman, the Information and Communications Technology Authority Law, allows any police officer at or above inspectors’ rank to request telephone records without the benefit of a court order. Refusal to hand over those records upon request to an officer who is attempting to detect or investigate a criminal offence is a crime.

The ICTA Law does not specifically address the question of what authority agencies like the complaints commissioner or auditor general’s office have to request a private individual’s phone records.

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