Governor claims victory in court

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.”

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2 COMMENTS

  1. Six months ago I criticised the ICO arguments for being very weak on areas outside the defamation issue and was ignored. My comments were based on experience in the UK and extensive documentation including a 115-page tribunal submission outlining the FCO approach to suppressing these documents, which could have been made available to the ICO if they had wanted it.

    I suspect that if the lawyers employed by the ICO had taken that on board we might have had a different outcome here although there is no guarantee. If nothing else it would have forced both sides to properly address the issue of Section 20 in court last week rather than just ending up with a telling off from the judge for not doing their jobs properly. Even if lessons have been learnt now, everything that has been done so far was little more than a complete waste of time and public money because this matter has not been moved forward. In fact if anything it appears to have gone in the opposite direction.

    However, there is an alternative solution. Some months ago Duncan Taylor went on record as stating that if Martin Bridger released the original complaint it would force his office to make the Aina report public in order to set the record straight.

    Mr Bridger responded that he believed the complaint was covered by the same gagging order, which is probably completely unenforceable anyway, that prevented him telling us what is in the Aina report. If I remember correctly he was seeking legal advice but there has been no update on this for some months. In fact his silence has been quite uncharacteristic. This stance is interesting considering the fact that, before the Met police even had any chance to start their investigations, he was more than happy to release his recent complaint against Stuart Jack to the press.

    But Mr Bridger is not the only person involved here. That complaint was actually written by Martin Polaine who was not party to the gagging order. In fact it was his input from the complaint that formed the basis of the Financial Times article on 13 January 2011, which identified several senior members of the judiciary as subjects of the complaint. He has tried to name and shame them once already so why not do it now when the results are potentially so much more rewarding?

    To stop any further expense and embarrassment to the Cayman Islands all it needs is one of these two gentlemen to copy that original complaint to the media – is it really that hard for them to finally do something right for a change?

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