A first-of-its-kind legal challenge to the Cayman Islands Freedom of Information Law will proceed, probably later this year in the Grand Court.
Governor Duncan Taylor’s office will be the first government entity in more than four years to take Information Commissioner Jennifer Dilbert to court over a decision she made regarding the public release of government records.
An English high court judge on 8 February stayed the release of a complaint filed by the former chief investigating officer of the ill-fated Operation Tempura. The decision also serves to withhold from public view a 185-page review of that complaint, which was requested by a British citizen and cost Cayman Islands taxpayers more than $300,000 to produce.
According to the decision by Justice Sir Alan Moses, Governor Taylor’s application for judicial review of an earlier order to release those records has been granted. The judicial review will now move ahead and Mrs. Dilbert’s decision ordering the release of the records will be stayed until that review.
Governor Taylor has claimed the information commissioner’s decision to release certain records related to the Operation Tempura corruption probe was simply an unreasonable one.
His claim is made in an application seeking judicial review of Information Commissioner Dilbert’s November order that sought the release of former Senior Investigating Officer Martin Bridger’s complaint and the governor’s evaluation of the complaint.
It’s not known yet when the judicial review hearing would proceed or 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 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, Mr. 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 …”