United Kingdom and Cayman Islands authorities recently issued decisions that will keep records related to the ill-fated Operation Tempura corruption investigation private.
In Cayman last week, an open records request was denied for the decision of a judge regarding legal representation for former Operation Tempura Senior Investigating Officer Martin Bridger.
In the UK, a separate request for a copy of a complaint filed by Mr. Bridger in connection with the Tempura case was also denied – for a second time.
The court ruling in January by Grand Court Justice Charles Quin apparently indicated that the Cayman Islands attorney general’s chambers would no longer be representing Mr. Bridger in connection with a lawsuit regarding the investigation between September 2007 and April 2009 on Grand Cayman.
Mr. Bridger’s attorney, Anthony Akiwumi, said in court last month that Mr. Bridger was being made the “sacrificial lamb” by the government in the lawsuit filed by former Royal Cayman Islands Police Commissioner Stuart Kernohan.
Government lawyers argued there was no need for uninvolved parties to know why Justice Quin ruled that Mr. Bridger should no longer receive representation, though he was working in Cayman as an RCIPS constable and was an employee of the Cayman Islands government during his work on Operation Tempura.
The government denied an open records request for the ruling under Cayman’s Freedom of Information Law, which generally excludes the judiciary.
According to the FOI Law, it “does not apply to the judicial functions of a court or the holder of a judicial office or other office connected with a court”.
The visiting UK judge who presided over the hearing on former Commissioner Kernohan’s lawsuit indicated his keen displeasure over the fact that Mr. Bridger was apparently being left to pay legal fees and travel costs himself.
“This all happened because they sent him out here,” Justice Sir Alan Moses said during the hearing. “I’m very perturbed by this.”
Mr. Akiwumi also asked who would pay Mr. Bridger’s legal fees if Mr. Kernohan’s lawsuit failed.
Bridger complaint
In the meantime, requests for a complaint Mr. Bridger took up with the UK Foreign and Commonwealth Office last year were denied on appeal with the UK Overseas Territories Directorate.
Mr. Bridger’s complaint, which contained various accusations regarding certain members of Cayman’s judiciary as well as staffers in the attorney general’s office, has never been published, though a few details appeared in a UK newspaper.
Governor Duncan Taylor dismissed all aspects of the complaint this year and refused to comment on it or release any details. He said that he had full confidence in members of Cayman’s judiciary. The UK foreign office said it held information about the initial complaint, but said the details should be exempted from release under Britain’s Freedom of Information Act.
“Disclosure would be prejudicial to the effective conduct of international relations between the United Kingdom and the Cayman Islands, which depends upon maintaining trust and confidence between the governments,” the Foreign and Commonwealth Office’s response to the open records request read. “We judge that disclosure of the information requested could lead to a loss of confidence within the international community, which could impact negatively on the Cayman Islands’ reputation and, more directly, on its financial services industry.”
Also, the UK is concerned about “more circumspect reporting” from the overseas territories’ governors if they feel their reports will be subject to open records requests.
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The appeal just submitted to the ICO in the UK argues –
1.The documents are already in the public domain, having been released to the press by the author(s).
2.Any damage to relations between the UK and the Cayman Islands has already been done.
3.Withholding the documents is actually causing more harm to relations between the UK and the Cayman Islands, therefore making the problem worse. In fact the sooner the documents are made public the sooner the rumours and press speculation will stop.
4.The argument that releasing the material might somehow undermine the ability of Governors to govern the Overseas Territories in itself seeks to undermine one of the fundamental principles of FOI that government must be accountable to the people. In doing so it contradicts an earlier statement that reads, The Governor’s Office is committed to openness, transparency and the public interest in compliance with both the UK’s Freedom of Information Act 2000 and the Cayman Islands Freedom of Information Law 2007. In fact it could be argued that if FCO-appointed Governors are somehow going to be intimidated by the provisions of local laws then maybe they are in the wrong job.
5.On 28 April 2011 the Governor’s Office in the Cayman Islands admitted that the contents of the requested documents contained material that was deemed to be defamatory. This reinforces an earlier decision made by the Caymanian Compass not to quote directly from the Financial Time (FT) article because it was clear that the contents libelled some of those named. In addition to members of the judiciary named by the FT I understand that the documents requested name several elected members of the Cayman Islands’ Legislative Assembly including the current Premier. Based on the repeated references in the FT article to my actions, it also appears that I was named in the complaint. Under the provisions of the European Convention on Human Rights (Article 6) anyone named in the documents has a right to defend themselves against what have now been deemed to be false accusations. If the documents are not released this is impossible.
And concludes –
I am submitting that the decision to withhold the requested documents is an abuse of the quoted exemptions. The only real reason that the FCO have to keep the correspondence secret is the fact that disclosure is likely to cause acute embarrassment to senior officials of that department.
In addition to the appeal, it is clear that both the original complaint and the reply fall under the definition of Personal Data as specified by the UK’s Data Protection Act, simply because they form a record of the alleged activities of living people (including myself) who can be identified. Based on this I have now also filed a Subject Access Request with the FCO and would advise others involved to consider similar actions.
Incidentally, I think that Justice Quin’s decision on Martin Bridger’s legal costs simply follows on the RCIPS policy outlined in their refusal to deal with my PSU complaint about his conduct earlier this year. That basically stated that he no longer with the RCIPS, no longer in the Cayman Islands and anything he had done was nothing to do with them. Everyone is trying to distance themselves from the whole fiasco.