The Office of the Governor on Wednesday claimed victory in its Grand Court appeal last week as Lord Justice Alan Moses “quashed” an Information Commission order demanding the release hundreds of pages of sensitive documents.
The statement came after the Information Commissioner on Tuesday claimed similar vindication, saying Justice Moses had “provided clarity” by denying the Governor’s claim for exemption based on potentially defamatory allegations in the documents.
Calling it “the central issue for the hearing,” the information commissioner noted the conclusion that defamation did not “automatically exempt” documents from release under the Freedom of Information Law.
However, the Office of the Governor said on Wednesday, Justice Moses “also ruled that the Information Commissioner had not considered the public interest test correctly when interpreting section 20(1)(d) of the FOIL – that disclosure of the material would, or would be likely to, prejudice the conduct of public affairs.
“Lord Justice Moses therefore quashed the Information Commissioner’s decision and ordered her to reconsider it with reference to section 20(1)(d). He gave the Governor the opportunity to provide a submission on this.”
The ruling, which is not public, although set for imminent release, means that the governor does not yet have to comply with a November demand by the information commissioner to release a series of reports, complaints and analyses of the 2007-2009 Operation Tempura probe of police corruption.
In a January appeal to the Grand Court for a judicial review, the governor declined to comply with Information Commissioner Jennifer Dilbert’s order on two grounds: that the documents included defamatory material regarding Chief Justice Anthony Smellie, Grand Court Justice Alexander Henderson and Attorney General Sam Bulgin; and that the documents could “prejudice the effective conduct of public affairs.”
The appeal cited 10 errors of law in regard to Section 54 defamation clauses in the Freedom of Information Law and another three in regard to Section 20 “public affairs” clauses, calling Ms Dilbert’s demand “unreasonable.”
In a two-day hearing last week, held largely in chambers, Justice Moses, visiting Lord Justice of England and Wales, ultimately denied the defamation exemption, but said neither party had placed sufficient emphasis on the “public affairs” exception, and asked the governor to submit further arguments on the subject to Ms Dilbert.
The commission, in the meantime, was to “reconsider the matter in light of these submissions and render a new decision,” according to the commission’s Tuesday statement.
The justice set no deadlines for either the submissions or the new decision, meaning the case could remain unresolved indefinitely. Ms Dilbert has announced her December retirement, but no replacement has been named. The governor appoints the information commissioner with advice from a five-member panel, also appointed by the governor, for a term of five years.
Staff Officer for the Office of the Governor Tom Hines said his team would submit arguments to the information commissioner as soon as she asked.
“We wouldn’t want this to drag on. We will strive for the deadlines that the ICO comes up with,” he said, adding that “once the judgment is made public and we have some clarity, we’ll decide what to do.” He vowed, however, “to move swiftly.”
Mr. Hines said “absolutely” that, while the case remained open, the governor would retain the documents sought by Ms Dilbert, and acknowledged that further appeals were possible.
The governor could, in theory, seek another judicial review of any new ICO decision, moving to the Court of Appeal and beyond, to London’s Privy Council if necessary.
“I can’t judge that,” he said, asked if the documents would ever be released. “That is for the governor’s decision.”
Ms Dilbert’s December retirement, he said, should not affect the case:
“This is between the governor and the information commissioner and has nothing to do with personalities.”