Judicial review involving corruption case uncertain
The twists and turns of the ill-fated police corruption investigation known as Operation Tempura keep coming, five years after the probe led to the suspension and eventual removal of two top local officers from their posts.
The latest confusion has arisen via an open records request made by a former Crown witness in the Tempura investigation. The open records applicant, UK citizen John Evans, had asked for a copy of a complaint made in 2010 by former Tempura legal adviser Martin Polaine and carried forward by Senior Investigating Officer Martin Bridger. The request also seeks the subsequent evaluation of that complaint done by Cayman Islands Governor Duncan Taylor’s office.
The request was initially denied by Mr. Taylor, but that decision was overturned by Cayman Islands Information Commissioner Jennifer Dilbert. Mr. Taylor then challenged Mrs. Dilbert’s ruling as “unreasonable” in a judicial review application filed with the court earlier this year.
However, on Friday, 1 March, Mr. Evans abruptly asked for his open records request to be withdrawn and that the matter be ended. The governor’s office and the information commissioner are set to go to court later this year.
“I am now satisfied that no useful purpose will be served by wasting what is likely to be a substantial amount of public money pursuing this any further,” Mr. Evans wrote in a letter to Governor Taylor’s staff officer Tom Hines. “I am … not convinced that the case presented by the information commissioner is sufficiently robust to secure the release of the requested documents.”
Mr. Evans also said that he, as the applicant for the information, had effectively been shut out of the court proceedings. “I sense there is a complete unwillingness to accept the clear instructions from Lord Justice [Sir Alan] Moses that I be included in the judicial review process as a ‘person directly affected’.
“In fact, the impression being given is that, although they are happy to use my application and the subsequent appeal as grounds to challenge the [Freedom of Information] Law, any further involvement on my part is an unwelcome distraction.”
Both Mr. Hines and Deputy Information Commissioner Jan Liebaers declined to make any on-record statements regarding Mr. Evans’ claims or his apparent decision to drop the open records request. The Caymanian Compass also contacted attorneys representing the information commissioner in the judicial review case for comment, but nothing was forthcoming by press time Thursday.
It was unclear whether Mr. Evans simply dropping his request for the complaint and the evaluation of it – the complaint evaluation cost Cayman Islands taxpayers more than $300,000 – would have any effect whatsoever. The court case as styled puts only the information commissioner against the governor. Sir Alan Moses has ruled that Mr. Evans should be served with papers in the case, but the extent of the information applicant’s participation in the judicial review proceedings was not clear.
Mr. Evans said there were “lines of argument” he wished to pursue in the case that may indeed have made public officials in the UK and in Cayman uncomfortable.
“These relate to whether the inquiry into the complaint [by Messrs. Bridger and Polaine] was conducted lawfully in the first place and the questionable legality of the governor’s later actions in declaring the complaints defamatory, but then failing … to initiate any action over this.”
Again, representatives of Mr. Taylor’s office did not respond to claims the information applicant made in this regard. Mr. Taylor previously refused to release copies of either the initial complaint or the 185-page review of it done by London-based attorney Benjamin Aina because Mr. Taylor believed certain claims Mr. Polaine and Mr. Bridger made against members of the attorney general’s office and the local judiciary were defamatory. Defamation is a criminal offence in the Cayman Islands.
Some of the allegations were revealed in an article published in the UK media back in 2011. Mr. Bridger has declined to release copies of the complaint to the Compass because he said he promised Governor Taylor he would not do so.
“I believe the decision to refuse to release these documents was actually prompted by fears at the [UK] Foreign and Commonwealth Office that the contents would undermine the credibility of several senior civil servants … with the defamation argument merely being used as a convenient smokescreen,” Mr. Evans said.
“I am simply no longer prepared to allow my name to be associated with a process that will involve the employment of two top-end law firms at considerable public expense in what I believe is ultimately going to be a complete waste of time and money.”
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So they got to you then John; and the nerve of these people arresting McKeeva Bush.
I am wondering how many Caymanians have read and understand what really took place here. Where are our men?
During times of universal deceit, telling the truth becomes a revolutionary act. – George Orwell
Hunter, it wasn’t the mythical – they – who did the job here but the lawyers employed by the ICO.
When I asked about my involvement in the judicial review their reply read – As your interests are very likely to be distinct from the other parties to the proceedings, it would not be appropriate for either the Commissioner or us to give you advice or guidance on your role within the proceedings, or any action you may wish to take. It would be most appropriate for you to receive future guidance from, and correspond about the proceedings with your own legal adviser.
Odd comment that? I thought the object of the exercise was to force to Governor to release these documents but that message made it very clear this may not be the case.
A further message, apparently sent after consultation with the ICO, concluded – We do regard the points that you raise in your emails as being best answered by your own legal adviser, as opposed to another party to these proceedings, in particular where we agree that we approach this matter from different standpoints.
One of the points I raised was the fact that my role should be as a participant with the ICO in the judicial review not as a third-party. I then told them to either include me or I was going to drop the whole matter. There was no response to this.
With extensive experience of FOI in the UK, I find the concept of a process in which an FOI applicant/appellant can be completely shut out like this simply because apparently the ICO has problems with some of the issues they want to raise rather disturbing.
John…
What about the fact that you have ALWAYS been a 3rd party to these proceedings don’t you understand ???
And that your interests differ…and clash, with the other at least 2…or more parties in this on-going conflict.
And you now expect their legal counsel to act as yours as well ?
I advised you to drop this entire issue at least 2 years ago.
I’m happy to see that you’re now finally getting the message.
Firery
You comments don’t make sense. How can the actually FOI applicant in this become an outside party?
It makes as much sense as firing the pilots of an aircraft halfway through a flight then telling them to get off at 35,000 feet because the plane can safely continue the trip on its own.
You now live and work in the UK so you must know this is not how FOI should work.
Put your personal prejudices aside for a while and look at what might have been lost here.
BOOM THERE IT IS!!!
Yet again, the Governors office (FCO) decides it best that the Cayman people are not fit or to put in the queens English, not worthy of been afforded to transparency of the very essence of the claim that brought about the very damaging case for high ranking officers of the CI Government. HOWEVER, it was worthy to publish parts of the case in the UK media where learned UK citizens could appreciate the sophisticated level of corruption that was launched to undermine the credibility of the Cayman Islands.
At what point can we ever see FOI records released from the governors office???
SHAME ON U, SHAME ON U, SHAME ON U!!!
Firery on 18 January 2011 you posted on this website –
If Bridgers complaint (Polaines has been dropped) does not turn into a major issue with the FCO, then the matter will die a natural death. It will be a disservice to the Caymanian public who filed complaints if the results of those complaints are never made public.
Since then you do not appear to have done much to back that statement up. In fact you left all the work to me so quite how you can now make such a comment like the one below beats me.
For the record this FOI request was only filed 13 months ago on 8 February 2012. How can you now claim to have suggested I drop all this 2 years ago?
I admire people who can never give up – rational or not. But Mr Evans has progressed beyond admiration into the neverneverland.
John
You, of all people, know exactly what I’m talking about.
You’ve run your campaign, under different guises, to have this information made public ever since you left the Cayman Islands after the fallout of Tempura.
And that has been much longer than the 13 months ago that you filed the FOI request.
You have been an involved 3rd party all along, while presenting yourself as a ‘wronged party’ first…and then a defender of Cayman’s public purse second…and whatever other hats you’ve worn in your attempts to have this information fully released.
Its now out of your hands and if the release of the documents is what you’re after, your efforts have aided the process to at least now be under judicial review.
What more do you want ?
I’ve always supported your campaign to have these documents released and I still do.
Now that its in the hands of the judges…
Let them deal with the final outcome.
This is why I agree with your decision to step out of the process now.
Old Hand, you also just posted a comment that reads – Nobody ever does anything wrong, in this the best of all possible worlds. And it follows that nobody is ever responsible for anything, ever. How on earth does the world keep going round?
That reads very like living in neverneverland to me or are you just an Old Cynic who likes to post things you don’t really mean. Slag me off in you want but at the end I will always be the one laughing.
Firery, make your mind up – either you want this made public or you don’t. So far all I have seen from you is words, all the actions (whether you like it or not) have come from me. You talk the talk but I never saw you back it up so please leave me to deal with this.
I am disappointed that Mr Evans has made the decision as outlined in your article. That said, my understanding is that the court will still have to make the decision whether the Governor’s findings in respect of my complaint should be made public or not.
From my perspective I would be pleased if the findings were made public as it would better inform the public as to some of the issues that occured in respect of Operation Tempura, thereby enabling people to make judgments when in possession of a broader range of facts.
The Governor would only provide me with his findings if I signed an undertaking not to disclose them.One of his concerns was that some of his comments could be viewed as deflamatory. If that were the case is it not reasonable to ask why he felt it was necessary in the first place to comment in such a way. What was I meant to do? I wanted to know the rationale as to why he dismissed my complaint a position, in my view that any reasonable person would adopt.
The complaints that I made were made in good faith and legitimately raised a number of questions that needed answering.That is why, in a democratic society complaint processes are made available to the public.
I have been asked by a number of people why I will not put in the public domain my original complaint (which is not covered by the undertaking). If ever I were in a position to share my complaint with the public in the absence of any potential action being taken against me then I would be more than content to share it and let the public view the legitimate concerns that I raised.
John
My issues were settled in the Tempura investigation…
And I’ve since dumped any files that I had compiled…and those files were what got my complaint looked at.
My own issues were settled long ago; I have no axe to grind with anyone.
You now seem to be talking out of both sides of your mouth…surely you don’t believe that your pulling out of the process because your demands haven’t been met means that the process will now be aborted ?
Its gone too far for that now…
And I, as do so many others, want to to see these documents finally released in the public realm…
But…its all in the hands of the judges now, mate.
John…
Let me make something quite clear to you, despite what Cayman’s ‘establishment’ might have maneuvered the public into believing…
Operation Tempura and Martin Bridger did a lot of good for a lot of people in Cayman, from the level of the society who needed to have their complaints heard and investigated by independent investigators.
I know that many of those complaints were frivolous but not all of them were; that much I can guarantee you.
Was the entire opertaion worth the 10 million and more that it cost ?
That depends on which side of the fence you’re looking from.
The issue of Tempura becoming the public fiasco that it eventually did become has more to do with the investigation stepping on some BIG toes as it continued.
I strongly suspect that those TOES are the reason the information is being kept from public view even up until now.
In any event, some judge will soon decide the ultimate outcome of all this…
And I truly hope, for the sake of the man who was most wronged, may he RIP, that the decision handed down will be the LAST that any of us hear of this, ever again.
Mr Evans
You will of course be the one laughing at the end of everything..with your cap and bells. And go down laughing.
One of the great things about freedom of speech and the related freedoms is, entirely properly, that people like Mr Evans can go on pushing their agenda. But equally it means we don’t have to swallow their shovels of self-propelled propaganda. It also means, in the end, that we have to fund their activities through our admirable constitutional and legal provisions.
As I said before, and will say again; Unless the Governors classification of the documents is overturned by a high court of the land, its classification of non-disclosure being in the interest of national security should stand. I see no reason for the courts to action this further, if the complaint commissioner has no complaint, she should withdraw her challenge to have such a highly classified document. At very least John, the complainant weighed his interest and made a timely decision to withdraw in the interest of our national purse. For that I say thanks. We are about to spend millions again to hear what?. That some unorthodox processes was used by an overzealous group of investigators.
Right now! Spend that money on the schools, more gossip we don’t need. Complaint Commissioner,
Please do the right thing and withdraw the challenge to the classification of these documents..