Ruling: Not all judicial records exempt

An open records request which involved a memo sent from Cayman Islands Chief Justice Anthony Smellie to a former high-ranking police officer has been fully granted on appeal to the Information Commissioner’s Office.

The decision by Information Commissioner Jennifer Dilbert, which can still be appealed to the Grand Court, is significant in that it sets a precedent for other court records deemed to be administrative in nature.

According to section 3(5) of Cayman’s Freedom of Information Law, 2007, the law 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 request made earlier this year by a former courts employee asked for “any memorandum written to [retired] Detective Chief Superintendent [Mike] Needham of the RCIPS on 30 July, 2007 and well as my whole file …” as part of an FOI request. After some confusion over whether the memo requested actually existed, the courts produced a record for review which “is in fact an unsigned memorandum from the chief justice dated 30 July, 2007, which is not addressed to Detective Chief Superintendent Needham”.

The memo, according to information obtained by the Compass, dealt in part with the issue of letters published during 2007 in the Cayman Net News, which Chief Justice Smellie concluded were “an attempt to scandalise and effectively undermine public confidence in the judiciary of the Cayman Islands”.

Mr. Smellie told the information commissioner he was acting in a judicial capacity when he wrote the memo to refer an issue for investigation.

“We submit that the responsive record … is not one of an administrative nature, was not held in a registry or any other office of a court, and requires and is deserving of protection under the law,” the judicial administration wrote in its response to the information commissioner’s office during the FOI appeal hearing.

The applicant for the information – who is not identified – stated a letter in their personnel file referred to a memo written by Mr. Needham in 2007 and that they should have access to it.

“A judicial function must be relating to the administration of justice relating to a judgment in a court of law or to a judge exercising this function as a judge,” the open records applicant wrote.

Commissioner Dilbert ruled that, while the memo was presented as part of evidence laid before a tribunal of enquiry, the tribunal was held in open session. She also opines that judicial administration did not provide any further arguments as to why the memo should not be considered administrative.

“I am of the view that the responsive record is largely an administrative record held in a registry or other office of the court,” Mrs. Dilbert wrote.

However, the information commissioner did decide to redact the last paragraph of the memo referred to the in case because it would concern “an unreasonable disclosure of a third party’s personal information” that do not serve the public’s interests. The remaining six paragraphs of the memo should be released, she said.

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  1. Be interesting to see what comes out of this.

    On 4 September 2007, during the debrief at George Town police station following the now-infamous search, a senior police officer confirmed to me that the RCIPS had been asked to investigate the letters published by Net News attacking the judiciary.

    According to him, the RCIPS had simply concluded that the comments were no worse than might appear in the tabloid press in the UK and no investigation was ever conducted.

    At this stage I don’t really want to get into speculation about where this request might be going but, according to one of the Operation Tempura team, Mr Needham did not make the decision to kill the investigation himself, it came from higher up and the officer named at the time is still in post.