A court challenge over certain records related to the ill-fated Operation Tempura investigation has raised a major unresolved question with the Cayman Islands Freedom of Information Law.
The legal battle between the governor’s office and its appointed information commissioner may be crucial in deciding how the release of government records affects the conduct of public affairs in the overseas territory.
At stake is the release of a complaint made by Tempura’s former senior investigator Martin Bridger. The governor’s office has sought to withhold the complaint and subsequent 185-page evaluation of it from public view, saying it is unsubstantiated and would serve to defame three serving members of the Cayman Islands judiciary.
Public interest
Former Information Commissioner Jennifer Dilbert ordered the complaint’s release, stating that it was in the public’s interest for the governor’s office to do so.
U.K. high court judge Sir Alan Moses has asked the information commissioner’s office to go back and review its decision, specifically seeking to clarify whether the release of the complaint “would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.” Prejudicing the conduct of public affairs is one of the reasons a government agency can give for withholding a record sought under Cayman’s FOI Law.
The exemption in the law, which has never been clearly defined, has sometimes been used by government entities seeking to place a blanket exemption on the release of what would otherwise be public records.
In the case before the Cayman Islands Grand Court, the governor’s office argued that publication of Mr. Bridger’s complaint would damage public confidence in the administration of justice.
“The effective administration of justice requires that the public have confidence in the integrity and independence of the men and women who serve within the judiciary,” former governor’s aide Tom Hines wrote in the office’s argument against the release of Mr. Bridger’s complaint. “It also requires that this confidence is not eroded by unmerited or unfounded allegations made against them.”
Mr. Bridger’s complaint names Chief Justice Anthony Smellie, Grand Court Justice Alex Henderson and Grand Court Justice Sir Peter Cresswell, according to court records. The specifics of each justice’s alleged wrongdoing have never been made public and have all been dismissed by former Cayman Islands Governor Duncan Taylor.
Publication of claims already discountenanced by the governor, Mr. Hines said, “would be likely to give public currency to the unmerited allegations they contain, rather than to clarify the position or promote greater public understanding of [the governor’s] decision.”
Undermining public confidence
Mr. Justice Moses summarized the claims of the governor’s office this way: “Raking over the coals of summarily dismissed allegations would … only revive unfounded and malign attempts to undermine public confidence in the judiciary.”
Arguing for the release of the complaint and subsequent evaluation of it, Mrs. Dilbert, who retired as information commissioner in December, said more harm was being done to the entire territory by not releasing Mr. Bridger’s complaint.
“The continuing secrecy surrounding Operation Tempura, [a related investigation Operation] Cealt coupled with evidence that both investigations achieved absolutely nothing, is doing immeasurable harm to the reputation of the Cayman Islands and public confidence in the police and the [U.K.] Foreign and Commonwealth Office,” she wrote.
Disclosure of the Bridger complaint and the evaluation of it would document reasons for the governor’s decision to dismiss the complaint, Mrs. Dilbert said. She also noted that disclosure would provide “accountability of government” for the more than $300,000 spent on the evaluation of Mr. Bridger’s complaint by the governor’s office, she said.
“Disclosure would help to preserve the reputations of the judiciary and other government institutions,” Mrs. Dilbert concluded.
This is the essence of the argument Mr. Justice Moses asked the information commissioner and other interested parties to work out in a subsequent appeal hearing.
“I hope I have identified the important issues which fall to be decided without indicating where I believe the balance should be struck,” Mr. Justice Moses wrote. “If others think I have nudged the commissioner one way or the other, they are mistaken.”
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I find it interesting that this ruling tends to support my own concerns that the arguments put forth by the ICO had more to do with challenging a specific aspect of the FOI Law than actually forcing publication of the documents.
In a written submission sent to Lord Justice Moses in April last year, I described the case made by the ICO for disclosure as being weak and inadequate. Although the comments in his ruling are phrased in rather more polite terms he seems to agree with that.
Based on my experience in the UK, I knew for certain that the Governor/FCO would rely heavily on the exemption contained in s.20(1)(d) of the FOI Law but any input I tried to make on this was ignored.
The impression I got was that having someone with first hand experience of dealing with the FCO at an FOI appeal before a tribunal in the UK was regarded as a inconvenient distraction from the master plan.
With due respect to all concerned, this matter has been handled very badly. I think questions should now be asked about how much it has cost and what lessons have been learned for the future.