FOI chief says parts of report on sexual attack on female firefighter should be made public
Information Commissioner Jennifer Dilbert has ordered the Ministry of Finance, Tourism and Development to release parts of an internal report on how the Fire Service dealt with a sexual assault complaint from a female fire officer.
The victim, who was a fire officer at the Cayman Brac fire station, initially complained about sexual misconduct of two male fellow fire fighters to the Cayman Islands Fire Service in February 2007. Dorian Hunter, a male colleague of the victim, was jailed for 18 months in February 2009 on four counts of indecent assault that occurred between November and December 2006. This led to the commission of a report into the allegations made by the victim as well as a review of whether the environment within the Fire Service was suitable for female officers.
The ministry refused to release the report in response to a Freedom of Information request filed by the Caymanian Compass.
Mrs. Dilbert’s decision, dated 4 May, grants partial access to the report, allowing the ministry to redact parts of it, including the victim’s name and details of the inquiry into sexual harassment.
In December 2010, the ministry provided a list of nine measures and actions the Fire Services Department had undertaken as a result of the review prompted by the victim’s complaint, but it did not release the report.
The Fire Service’s Chief Fire Officer first began an investigation into the victim’s allegation a month after she filed her complaint, but that was suspended in May 2007 when police began a criminal investigation.
In October 2009, the victim filed a civil suit seeking damages from the government, which is believed to be still pending.
When sentencing Hunter, then 26 years old, Grand Court Justice Charles Quin said other officers also subjected the victim to humiliating and degrading treatment at the station, which was described during the trial as a “very unpleasant place for women to work”.
Hunter has completed his sentence in relation to the sexual assault of the fire officer, but he remains in prison after being convicted of another sex offence.
The victim moved from the fire station on Cayman Brac to Grand Cayman, but by the time the case came to court in 2009, she had left the Fire Service. In her victim impact statement that was read to the court, she said she had been ostracised by her colleagues and had attempted suicide as a result of the assault.
Even though the review was done after the criminal case was heard and before the civil case was filed, the ministry argued that due to the serious criminal nature of the allegations and the conviction of Hunter, it was likely that a civil action would follow, and therefore the report was created “for use in anticipated litigation” and was exempt from being released.
The attorney representing the victim in the civil suit had been denied access to the report on the ground of legal professional privilege, the ministry stated, and that to disclose it to a third party – the Compass – “would result in a breach of a well settled legal discipline and allow the other side discovery to a document they may not otherwise have been able to access”.
The commissioner ruled that she did not find that the report and its use in litigation by government lawyers had been sufficiently established for litigation privilege to apply to the document.
The report, titled Work Environment Review of the CI Fire Services, was commissioned in May 2009; in September 2009 it was submitted by Premier HR Management Solutions to the Portfolio of Internal and External Affairs and the Ministry of Finance, Tourism and Development.
Mrs. Dilbert stated that according to the executive summary of that report, the scope of Premier HR’s project was to “continue and conclude the internal investigation into allegations of inappropriate behaviour in the Fire Services… and conduct a workplace environment review of the service”.
The terms of reference of the report stated that the consultant was to investigate allegations against any other officers and determine if statements made to the police contradicted what the officer(s) gave to the chief fire officer in his investigation. This would determine whether any disciplinary action should be taken against any other officer.
The consultant’s second task involved determining how women fit into the male-dominated environment of the Fire Service, with the objective to ensure the department was conducive to “creating a level playing field”.
The information commissioner ruled that legal professional privilege did not apply to the report because the dominant purpose of the report by Premier HR was for human resources management and not for legal matters.
Under the ruling, all of the report relating to a review of the Fire Service’s workplace environment review must be released, but the majority of the section on the sexual harassment review can be redacted.
The ministry has 45 days to appeal the commissioner’s decision.