Defamation claims at issue with FOI Law

The recently ordered release of records held by the Cayman Islands governor’s office has put Information Commissioner Jennifer Dilbert in the odd position of arguing against her own law.  

Mrs. Dilbert declared in a ruling released last week that a specific section of the Freedom of Information Law written to prevent defamatory material from being released into the public domain was “not justifiable in a democratic society”.  

“My concern is that if you read [section] 54 (1) on its own then practically everything would fall under it,” Mrs. Dilbert said in an interview Friday. “I see it being problematic if public authorities can just start saying that it is defamatory. 

“This would include any materials that could be construed as being critical of government, of decisions of public authorities or the actions of public officers.”  

Section 54 (1) of the Freedom of Information Law, 2007, states: “Nothing in this law shall be construed as authorising the disclosure of any official record (a) containing any defamatory matter or (b) the disclosure of which would be in breach of confidence or of intellectual property rights.”  

In her ruling released last Thursday, Mrs. Dilbert wrote: “I consider this provision to be contrary to international best practice [the only other country that has such a provision in its FOI legislation is Jamaica], contrary to the intent of the drafters of the FOI Bill, in contradiction with other subsections … within the FOI Law, fundamentally in contradiction with the intent and objects as set out in section 4 of the FOI Law, contrary to the fundamental right to freedom of 
expression … and contrary to the constitution.”  

 

The records  

The records ordered to be released involved a controversial complaint filed by the former chief investigator and the ex-legal adviser for the ill-fated Operation Tempura corruption probe.  

Mrs. Dilbert also ordered Governor Duncan Taylor’s office to release a response that evaluated the claims put forth in the complaint filed by Martin Polaine and Martin Bridger. Governor Taylor said the complaint was without merit following the issuance of a 185-page review done on it by a United Kingdom-based Queen’s Counsel.  

Previous open records requests for the complaint documents filed by the Caymanian Compass and a private citizen in the UK were foiled when the UK Foreign and Commonwealth Office declined to release them on the grounds they could prejudice relations between Britain and its overseas territory.  

A similar request, made by John Evans – a former witness in the Operation Tempura investigation here in Cayman – was filed with the governor’s office. It was rejected on the grounds that releasing the records would cause Mr. Taylor’s office to publish materials that were defamatory.  

The complaint filed by Mr. Polaine and later carried forward by Mr. Bridger involved certain allegations against members of the Cayman Islands judiciary and representatives of the attorney general’s office in connection with the Tempura probe.  

Operation Tempura was a two-year, $10 million investigation into alleged misconduct within the Royal Cayman Islands Police Service that was active in between September 2007 and roughly the end of 2009.  

The governor’s office had made no response to the ruling by press time Monday.  

“It is one of the most impressive and detailed FOI decisions I have ever seen and if the governor challenges it he’s just wasting time and public money,” Mr. Evans said.  

Public money was one of many deciding factors in Mrs. Dilbert’s decision. She cited the fact that the 185-page evaluation of Mr. Bridger’s complaint cost Cayman Islands taxpayers more than $300,000 to complete. Attorney Benjamin Aina, QC., performed the review.  

The governor’s office now has 45 days to seek to challenge the release of the records in Grand Court. If it does not do so, both the complaint and the response to the complaint must be published. 

 

What is defamation? 

There is no definition of “defamatory matter” in the FOI Law.  

The Cayman Islands Penal Code (2007 Revision) defines defamatory matter as “matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation”.  

Governor Taylor’s office argued with regard to the Operation Tempura complaint records that it would be exposed to legal action if the records were released.  

Mr. Evans argued in response that some of the allegations made against members of the judiciary have already been published in the UK press. Hence, the release of the complaint – which has already been debunked – could not “make reasonable people think worse of those named”.  

“The applicant [Mr. Evans] questions why, if defamatory comments have been made about members of the judiciary, which is an arrestable offence under Cayman Islands law, has nothing been done about it,” Mrs. Dilbert’s 
decision states. 

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4 COMMENTS

  1. Well, this about covers it all and none for the better!

    The Cayman Islands Penal Code (2007 Revision) defines defamatory matter as matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation.

    Who wrote this and made the amendments??

    Based on this, nothing can be said about anyone; regardless of the events or circumstances.

    Aside from personal ‘hatred’; a person or corporation who has FAULTED someone should/can be definitely and reasonably considered a Dumbass.
    Should ‘he’ be considered contemptible, ridiculed and ‘his’ profession and trade be damaged reputationally?

    Of course.

    This is not defamatory, its’ simply the Truth.

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  2. All Organs of the state have to act proportionately – see the Bill of Rights.

    If the documents contain defamatory statements, then rather than refuse to release the entire document, a more proportionate response would be to have any defamatory statements redacted.

    The Governor and the FCO need to stop hiding.

    If the precedent they wish to set is that Government is able to avoid disclosure by merely claiming a document contains defamatory material, then perhaps all of government going forward will follow their example.

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  3. Good points Atticus

    I offered to accept a redacted version of these documents in both my UK FOI appeal and this one but the FCO declined to go that route.

    In fact I doubt that the material is really defamatory in the first place and my response raises the point that nobody has been taken to court under the Cayman Islands Penal Code despite the Governor’s claims. This being the case could it be argued that the Governor aided and abetted the alleged offence by withholding evidence and interfering with an RCIPS investigation? I do not know but the bottom line here is that the defamation argument was completely bogus.

    The reason the FCO do not want these documents made public is simply the fact that they will raise some serious questions about what the Governor’s office was doing when they investigated these complaints. I already know that the requested material could raise serious issues about who had access to material from Tempura/Cealt and the chain of custody of confidential documents relating to the investigations. Who knows what else might surface?

    In UK FOI there is a clear warning that potential embarrassment is not valid grounds for refusing disclosure but I suspect that is what is happening here.

    It will be interesting so see how this progesses. The Governor seems to have three options –

    1. Release the documents to me. Not a likely option.
    2. Appeal the decision. This is going to be interesting as it cannot go to the Grand Court because there is a clear conflict of interests. Under ECHR Article 6(1) the matter will have to heard by an independent and impartial tribunal established by law. Quite how that gets set up will be interesting.
    3. The Governor could bury it all using Section 25 of FOI but that might encourage a feeding frenzy amongst certain sections of the media over here.
    4. Just try to ignore it all and hope it goes away.

    Right now I’d say that Duncan Taylor is probably looking at option 4 because that’s exactly what I would do in his place.

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