Court orders Dilbert to reconsider decision

Court asks information commissioner, governor to review each other’s arguments

Lord Justice Sir Alan Moses has denied an exemption claimed by the governor, but ordered the information commissioner to review her decision compelling release of sensitive documents.

A Tuesday statement from the Office of Information Commissioner Jennifer Dilbert released more details about last week’s judicial review of the governor’s appeal of a Freedom of Information order, saying the court had denied the governor’s request for an exception because the material may be defamatory, averring that “was not a basis upon which a public authority can withhold the record.”

However, the court has asked both Ms Dilbert and the Office of the Governor to exchange arguments regarding claims for exemption on the grounds that the documents may “prejudice the conduct of public affairs.”

Exchanges of documents between the two offices are likely to begin shortly, arguing the “public affairs” exemption, while Ms Dilbert reconsiders her late-November demand that the Office of the Governor release papers related to the 2007-2005 Operation Tempura probe of police corruption.

“The judge determined that neither party had placed sufficient focus on the exemption related to prejudice to effective conduct of public affairs,” said a release from the Information Commissioner’s Office.

“As a result, the judge directed that the Governor develop and submit arguments confined to this exemption, and the commissioner is to reconsider the matter in light of these submissions and render a new decision.”

The court order means the dispute is likely to continue while the Office of the Governor continues to resist releasing the documents – reports, complaints and a 185-page evaluation of both the Tempura probe and subsequent papers.

No date has been set to release the full court decision, rendered on Nov. 1 by Justice Alan Moses after a two-day Grand Court hearing, largely confined to chambers.

Citing the 2007 Freedom of Information Law, the governor, in a Jan. 7 appeal for judicial review of Ms Dilbert’s Nov. 22 order, claimed he was exempt because the papers – and the complaints in particular – defamed Chief Justice Anthony Smellie, Grand Court Judge Alexander Henderson and Attorney General Sam Bulgin. Additionally, he claimed, any release of the papers could compromise the conduct of public affairs.

“The judge has not said whether the order was right or wrong, but that is fairly typical of a judicial review,” said Deputy Commissioner of Information Jan Liebaers. “It’s supposed to be about whether the law was applied correctly, not if the commissioner made the right or wrong decision.”

Her November order, he said, “must go back,” although “strictly on that one example,” the public affairs claim. “All the others have fallen by the wayside.”

The Office of the Governor declined to comment on the Information Commissioner’s release, saying only that a statement would be forthcoming shortly. “We will probably put out a release on the outcome of the J[udicial] R[eview] later today or early tomorrow,” said Staff Officer Tom Hines, declining further comment.

Mr. Liebaers said the Commission office would solicit submissions about conduct of public affairs in what the agency called “a paper hearing,” an extended examination of written opinions, before reformulating a decision.

He was unable to predict when Ms Dlibert might render a “new decision,” particularly if the governor seeks “an investigation” of the issue.

“We’ll entertain arguments from the governor’s office, but if an investigation is to be done, we’ll give them a chance to put it in writing,” Mr. Liebaers said.

The potential also exists for the Office of the Governor to appeal any new decision that Ms Dilbert may render.

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2 COMMENTS

  1. Whilst getting very little satisfaction from being proved right this was rather predictable. By concentrating on the defamation issues the ICO (or possibly more accurately their lawyers) had clearly dropped the ball on the other factors.

    In my UK FOI application and appeal the major issues were that disclosure of the material in the documents would prejudice the interests of the UK abroad and that material contained in them obtained from the Cayman Islands was confidential.

    It was also argued that disclosure of much of the material would be contrary to the UK Data Protection Act. That last factor effectively killed any chance of the appeal resulting in proper disclosure over here and forced me to transfer the FOI application to the Cayman Islands, where DPA would not be a factor.

    I still have all the UK documentation, including the complete submission made in favour of non-disclosure and obviously my own counter-arguments, which included reference to human rights issues. Yet when this Judicial Review kicked off lawyers acting for the ICO shut me out of it, thus ensuring that all the UK documentation and my experience of the way the FCO had worked were not used.

    As one FOI specialist who assisted me during the UK appeal just observed this story makes it all look like amateur hour over there.

    Sadly, as this unfolds it increasingly looks like becoming another very expensive fiasco in the Cayman Islands. I suppose you could say that this is the curse of Tempura striking again.

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  2. Don’t be fooled by this verdict.

    While Sir Allan Moses appears to have ruled in favor of the Information Commissioner’s Office he also seems to have offered the governor another chance to withhold the documents in question by requiring the information commissioner to re-hear further submissions from the governor’s office about the matter of prejudice of public affairs.

    This ruling has been designed to allow the information commissioner to change her position on the release of the documents and to allow both the information commissioner and the governor to save face.

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