Five months after being sent an open records request, the Cayman Islands government has been unable to produce all correspondence that allegedly occurred between officials and the purchasers of The Ritz-Carlton, Grand Cayman, ahead of the public auction of the property 31 October, 2012.
Following the auction, a public dispute began between then-premier McKeeva Bush and new Ritz owners RC Cayman over how earnestly the government had pursued discussions involving matters such as $6 million owed from duty concessions granted to the resort developer, future concessions for resort operations and stamp duty to be paid when the resort property is transferred.
Mr. Bush and RC Cayman representatives agreed they met 23 April, 2012, and that RC Cayman sent Mr. Bush a letter 14 June detailing its proposals for the hotel, concessions and duty.
However, on 14 November, Mr. Bush said in the Legislative Assembly he rejected RC Cayman’s proposals in writing in a 5 October letter. RC Cayman representatives maintained they received no such correspondence, despite efforts to communicate with Mr. Bush, his office and Cabinet prior to the 31 October auction.
Last week, Mr. Bush declined to comment further on the matter.
Compass asks for correspondence
On 16 November, the Caymanian Compass submitted a request under the Freedom of Information Law to Mr. Bush’s ministry, seeking “all correspondence between public officials and the secured creditor/purchaser of The Ritz-Carlton, Grand Cayman property or their representatives – including RC Cayman, Five Mile Capital Partners, Eastdil Secured and Conyers, Dill & Pearman”.
On 15 January, 2013, the ministry’s information manager contacted the personal assistant to the Cabinet Secretary, who asked the premier’s chief of staff Leonard Dilbert to help her access Mr. Bush’s official email account, which had been deactivated following Mr. Bush’s removal as premier.
The government’s computer services helpdesk told Mr. Dilbert that it would have to get advice from Portfolio of the Civil Service acting chief officer Ian Fenton before proceeding with the request. Following additional queries by Mr. Dilbert, on 23 January Computer Services Department director Gilbert McLaughlin said there were concerns that “CSD staff may potentially be liable for Human Rights violation for fulfilling the request”.
On 24 January, Mr. Fenton said his portfolio had sought the attorney general’s opinion on “access to emails in a general sense”.
On 29 January, the ministry’s information manager relayed that chain of emails to the Compass, saying that she was unable to obtain the records the Compass was seeking.
On 30 January, the Compass requested that the ministry’s chief officer Stran Bodden conduct an internal review of the open records response.
On 6 February, the Information Commissioner’s Office commenced a formal investigation of the matter.
On 1 March, deputy information commissioner Jan Liebaers published a decision stating that computer services “applied a policy which appears to contradict the requirements of the FOI Law, resulting in making the records unavailable to the Ministry until the Deputy Governor gave his approval. In doing so, Computer Services Department made it impossible for the Ministry to meet its obligations under the Law”.
Mr. Liebaers said, “it is clear to me that due process under the FOI Law has not taken place”. He found faults with government’s handling of the open records request on multiple levels, starting with the information manager waiting until the day before the deadline to respond before initiating the process to retrieve the records.
“[I]t is puzzling that the IM waited until almost 60 days after the request was made to start this process”, he wrote.
During the information commissioner’s investigation, computer services no longer mentioned any possible human rights violations, but instead referred to its “a longstanding and approved procedure” of obtaining approval from the deputy governor before granting access to inactive email accounts. The information commissioner’s office requested a copy of the policy or procedure, but computer services did not send one.
“The reasons for this are not clear: does CSD take an investigation by the ICO sufficiently seriously? Is CSD having problems locating their own policy? Does the policy exist?” Mr. Liebaers wrote.
“More importantly, assuming the existence of a policy, it is incorrect for a public authority to block due process required by primary legislation relying on any policy at all. It is simply not possible for a policy or procedures to override any primary legislation, in this case the Freedom of Information Law. This basic hierarchy in the rules that govern how public authorities work and apply their powers is clearly not well enough understood,” he wrote.
On 1 March, Mr. Bodden provided the Compass with emails dated 23 April, 2012, between himself and Kevin Butler of Conyers, wherein they confirmed that a meeting had taken place earlier that day, involving Jim Glasgow, David Lattimer and Tao Li from Five Mile, Mr. Butler from Conyers, and also Mr. Bush, Mr. Dilbert and Mr. Bodden from government.
On 2 April, after access to Mr. Bush’s inactive email account was finally granted, Mr. Bodden told the Compass that he could not find any other correspondence between government and the purchasers of the Ritz.
“To the best of my knowledge, there are no further records held by the Ministry in relation to your request,” he said.
In response, the Compass asked Mr. Bodden to check specifically for the 5 October letter that Mr. Bush claimed to have sent to RC Cayman/Five Mile. Mr. Bodden responded 5 April, “To my knowledge in the Ministry of Tourism there is no record of such a letter. However, I have sent the request to other relevant chief officers who may have generated the letter and possess the letter as a record.”
The Compass also requested that Mr. Bodden look specifically for the 14 June letter RC Cayman representatives sent to government (detailing proposals from the 23 April meeting) and a letter sent by RC Cayman representatives to government in advance of the 31 October auction.
On 10 April, Mr. Bodden sent the Compass a copy of the 14 June letter from RC Cayman, saying it had been held by another ministry. In the letter, RC Cayman proposes paying off US$7.5 million in outstanding duty, in exchange for a number of concessions, including reducing the stamp duty on the property transfer to US$7.5 million, reducing work permit fees, allowing the resort to produce its own energy and water, reducing future import duties, and discussing the possibility of converting the development’s leasehold interest into freehold, sometime in the future. For the most part, the contents of the letter align with Mr. Bush’s description of the letter in the Legislative Assembly 14 November.
The Compass’ appeal to the Information Commissioner’s Office is being held in abeyance while the Compass gives Mr. Bodden the opportunity to locate additional records – if they exist, and if they remain in the government’s custody.