The Grand Court on Wednesday named Chief Justice Anthony Smellie, Grand Court Judge Alexander Henderson and Attorney General Sam Bulgin as potential defamation victims, if the governor were to release certain documents under the Freedom of Information Law.
In a two-phase session that was partially open to the public, visiting Lord Justice Sir Alan Moses heard the start of a challenge by former Governor Duncan Taylor to a 2012 order by Information Commissioner Jennifer Dilbert to release documents relating to the 2007-2009 Operation Tempura investigation of police corruption.
Justice Moses entertained public arguments about potential defamation of top government officials in the documents, but he went into chambers as lawyers examined whether the material might “prejudice the conduct of public affairs.” .Ms Dilbert wrote at the time that defamation restrictions were “not justifiable in a democratic society,” and the law “disproportionately restricts the right to free expression.”
The governor’s office challenged Ms Dilbert’s order, outlining the potential for complex and ongoing legal action and damage to the conduct of government business should the documents be released.
The documents, filed in 2010 and later picked up by former Operation Tempura Senior Investigating Officer Martin Bridger, comprise a complaint filed with the U.K. Foreign and Commonwealth Office regarding Operation Tempura. In addition, an evaluation of the complaint was written by Benjamin Aina, QC, at the behest of former Governor Taylor. Mr. Aina was a former counsel and adviser to Governor Stuart Jack, who launched Operation Tempura.
The Foreign and Commonwealth Office refused to release the records following an earlier open records request, citing potential damage to the relationship between the U.K. and the Cayman Islands. Mr. Taylor similarly declined, defying Ms Dilbert, saying Mr. Bridger’s complaint was “without merit” and the allegations he presented were defamatory.
Addressing both the FCO and Taylor refusals, Mr. Bourne on Wednesday cited Section 20 of the FOI Law, exempting disclosure of material ”likely to prejudice the effective conduct of public affairs,” while also referring to Section 54 of the law, which, he said, forbids disclosure of “any official record containing any defamatory matter.”
Justice Moses questioned Mr. Bourne’s reasoning on Section 54, saying it would be “a hell of a burden – and a very curious burden” were Mrs. Dilbert, when issuing her decision, “to conduct a mini-defamation exercise and all the defenses” involved.
Also, Section 54 not only exculpates any government authority from legal action for releasing defamatory material, but also anyone supplying that material to the government authority.
The governor’s office, Mr. Bourne said, “does not want to release material that is defamatory, while [Mrs. Dilbert] says they should release the report.”
Justice Moses observed that in the documents “an entirely true allegation may be made, but your interpretation is that it is defamatory.”
Mr. Bourne feared that releasing the report compiled by Mr. Aina would give “more currency” to the libelous allegations, drawing a sharp rebuke from Justice Moses, who told the lawyer that Governor Taylor’s rejection “says [the allegations] are rubbish. It squishes them.“If you want defamatory material not to be released, then say it’s exempt. It’s that simple,” Justice Moses said, querying the reasoning of both Mr. Bourne and legal drafters.
He denied that releasing defamatory material authorized further publication, and that another clause, Section 17, “cures all these defenses. Masses of this stuff is going to be jolly rude,” he said, “and that’s what people want to read.
Compass journalist Brent Fuller contributed to this story.