Cayman Islands Governor Duncan Taylor has claimed the information commissioner’s decision to release certain records related to the ill-fated Operation Tempura corruption probe was simply an unreasonable one.
The claim is made in an application seeking judicial review of Information Commissioner Jennifer Dilbert’s November order that sought the release of a complaint filed by the police investigation’s former senior officer. Mrs. Dilbert also ordered the governor’s evaluation of the complaint to be released; a record that cost Cayman Islands taxpayers more than $300,000 to produce, she said.
Mr. Taylor’s request for judicial review filed with the Cayman Islands Grand Court seeks to quash Mrs. Dilbert’s November order to release the records and asks her to reconsider the decision “in accordance with the findings of the court”.
In order for a judicial review hearing to commence, a judge must first agree to hear the matter and then the proceeding must come before the court. It’s not known whether any such court hearing would be open to the public.
The key issue in Governor Taylor’s judicial review application – likely to have significant importance to the territory’s four-year-old Freedom of Information Law – involves section 54(1) of the FOI Law that 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.”
Governor Taylor has said that the complaint filed by former Operation Tempura legal adviser Martin Polaine and then carried forward by the investigation’s senior officer, Martin Bridger, makes certain claims about sitting members of the Cayman Islands Judiciary that are untrue and that could potentially be defamatory. A full copy of the complaint has never been released.
The Section 54(1) exemption figured prominently into the governor’s decision to prevent the requested Operation Tempura records from being released.
The order to release the records put Mrs. Dilbert in the odd position of arguing against her own law.
Mrs. Dilbert declared that the 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 November. “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.”
In her ruling released in November, 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.”
In his application seeking judicial review, Governor Taylor said the “international best practice” comments made by Commissioner Dilbert were an “irrelevant factor” and that section 54(1) of the FOI Law as written was unambiguous.
“[Mrs. Dilbert] further jumped to the irrelevant and unjustified conclusion that section 54(1) was copied from the Jamaican [FOI] Act without appreciation of its potential effect on the workings of the Cayman Islands legislation,” the application for judicial review read.
The application continued: “She concluded that section 54(1)(a), if given its literal meaning, would contradict the FOI Law’s stated intent of giving effect to principles of accountability, transparency and public participation in decision-making, failing to appreciate that section 54(1)(a) would not apply simply to ‘any materials that could be construed as being critical of government, of decisions of public authorities or of actions of public officers’, in particular because … it is not possible to defame a public authority …”
A judicial review request is the legal procedure anyone can use to challenge a decision by the Information Commissioner before the Cayman Islands Grand Court. The review process can be used in cases where Mrs. Dilbert has declined to release documents as well as in cases – such as the one involving the Operation Tempura complaint – where she has ordered them to be released.
Previous open records requests for the complaint and the subsequent review of it filed by the Caymanian Compass and former Cayman Net News reporter John Evans were foiled when the United Kingdom’s Foreign and Commonwealth Office declined to release them on the grounds that they could prejudice relations between Britain and the Cayman Islands, a British Overseas Territory.