Governor calls records decision ‘unreasonable’

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. 

Gov Duncan Taylor

Mr. Taylor
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16 COMMENTS

  1. When this matter was appealed in the UK the FCO, backed by a solicitor employed by the Information Commissioner in the UK, relied on precedents set by arms deals with Saudi Arabia, anti-terrorist considerations and a bunch of other totally irrelevant material. In fact they threw everything but the proverbial kitchen sink into their defence of my appeal. But the one thing that was never mentioned was the possibility that the material might be, under Cayman Islands law, defamatory. Although defamation is not in itself an exemption in the UK the simple fact that the material might be subject to legal action or criminal investigation would have very effectively prevented it being released without a lot of fuss. In fact I think the same rules apply in the Cayman Islands.

    So who decided that the material in question (some of which has already been published by the Financial Times) is defamatory and if it is why has no action ever been taken to deal what is potentially a serious criminal offence? Why, for instance, was Benjamin Aina employed to investigate the complaints when the material attacking the judiciary, if it was defamatory, should have been handed over to the RCIPS in the same way that the now infamous Net News letters were? And why, with absolutely no evidence available that the material is actionable in any way, is the whole matter now being handled on a strict need to know basis?

    It looks to me like someone at the FCO (and this is clearly being dictated from London) feels the contents of these two documents are so embarrassing that it is worth discrediting the whole FOI process. In doing so they are also clearly prepared to inflict severe damage on the credibility of the current Governor not to mention the reputation of the Cayman Islands, to prevent their disclosure to the general public, which obviously includes the people named in them.

    I doubt this is really anything to with FOI or the Law, it looks to me more like internal FCO politics at work here.

    The FCO and the Governor have fought tooth and nail for the past two years to block any moves that might mean Operations Tempura and Cealt were subject to a full investigation along with a re-audit. This is just another expensive part of that process.

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  2. So, to cite your article ‘the complaint…makes certain claims about sitting members of the Cayman Islands Judiciary that are untrue and that could potentially be defamatory’. If this is the case, and this is the basis of the judicial review, why not simply redact these claims and release the rest of the report?

    The alternative way to look at it – it is only defamatory if it refers to a specific member of the judiciary, so if they simply removed the names (and or any other information that could point to any specific individual, given the size of the judiciary) the resulting document would still outline the meat of the complaint, even if not the persons accused. Given that that members implicated are well known already from past actions and publications, even the publication of their names is unlikely to defame them (if there is such a word) any further than is already the case.

    Either way, the meat of the document would appear to be releasable, and I trust that this gets resolved without much more cost to Gov and the public.

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  3. 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.

    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.

    These two paragraphs in this articles basically sums up the reasons why the FCO and Governor Duncan Taylor are going to every length to continue this massive cover up.

    FOI decision ‘unreasonable’?

    When since was the application and enforcement of any law ‘unreasonable’ ?

    The FOI decision is either legal or it isn’t…

    And now that its before a court, let the judge decide…

    And hope that it comes before an independent and unbiased judge.

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  4. Freedom to Information Act is to enhance the transparency of Government! I am a bit confused the Governor wants a transparent government in Cayman yet he is against releasing the record on a CORRUPTION probe! Was the probe done in the interest of the public or the interest of a few? Interesting days ahead in these blessed islands!

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  5. Mr Governor !! you are not GOD. You have a brain to use just like any ordinary person. ow can you call Mrs Dilbert’s decision unreasonable, unless there is something very sinster you have to hide? It is time that you all realize that Cayman is not a Banana boat uncivilized Island. We are made up of British, Irish and African. Mrs. Dilbert have to answer to the people of the Islands, so does the Judicial system.Lets hope the correct thing is done.

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  6. Mr Duncan Taylor, in the Cayman Islands, we say Bad luck is worse than obeah
    So take your pick, which one of them have fallen at your feet? Boy O Boy O Boy, you may fool some of the people some of the time, but not all the people all the time. I wonder what those Caymanians who were giving you such high praise is saying Now. Keeping quiet and having regrets. Keep telling you all that Caymanians are not entirely fooled. We not bowing or standing to attention either.

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  7. Does anyone know if the judge who will rule on this decision is the same judge brought from Turks and Caicos and who authorised Premier Bush’s arrest? Just trying to understand.

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  8. Running with the fox or hunting with the Hounds is not going to work Governor. You’re going too far out on a limb to save face for an operation that went wrong. Best thing is to allow transparency and the rule of law to work and move on. People will only let go when you do. The Commissioner is right on this one. I think you aught to privet and watch our Financial Crimes Unit wrap the Elephant they recently bagged in a nice little package and everyone will be very happy with what shakes out. Tongues will be wagging for years. Their the new super heroes on the scene now.

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  9. Bugeach, I like your comments, gosh I am laughing my head off this morning.
    Yes Mr Governor, we will let go when you do.
    Hands are around your throat, so spit it out because we are not budging and someone will get choked unless you let go.

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  10. Montana 94 08:48 do a little more investigating, and you will be surprised to find out if they are not all identical Twins. I am sure you understand what identical Twins are. Not only is the Judge a suspected Twin but all of the police officers who arrested Bush are also suspected as Twins.Now have I made it clear enough for you or do I have to encriminate myself.

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  11. JohnJack, that is a very good point. I have in fact offered to accept redacted versions of these documents but that offer was rejected by the FCO as impractical.

    Firery, my thanks for your comments. Although I do not want to go into details at this stage, there are now clear indications emerging that this secrecy has more to do with the rather curious way in which the whole matter was handled by the FCO than any issues of defamation.

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  12. John…

    I know what has happened here but as my ‘knowledge’ must remain in the realm of ‘opinion’ until these documents are released…

    Then my ‘opinions’ must remain private.

    The release of the documents will prove many people wrong…and many people right.

    Those who it proves wrong will have a lot to answer for.

    Lets hope that the judicial review will come back with the right decision, for those of us who are already right.

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Comments are closed.