Tempura records ordered released

For the second time, the Cayman Islands governor’s office has been ordered to release certain records related to the ill-fated Operation Tempura police corruption investigation.  

The ruling from Acting Information Commissioner Jan Liebaers on Friday orders the governor’s office to make public a complaint filed by the operation’s former legal adviser, as well as a subsequent evaluation of that complaint. All but one small section – less than a page – should be released, Mr. Liebaers said.  

“While [an] erosion of trust could harm the effective conduct of public affairs, it does not follow that the disclosure of [these records] would, or would be likely to, cause the erosion of trust in the judiciary,” Mr. Liebaers wrote.  

“I agree that publication of the complaint by itself might undermine the general public’s trust in certain members of the judiciary, but given the fact that the report summarily dismisses the allegations in a detailed and considered manner….I do not believe that its publication, nor the publication of the complaint with the report would, or would be likely to, harm the trust in the judiciary.”  

The governor’s office has 45 days to either release the records or challenge the information commissioner’s ruling by way of judicial review in the Cayman Islands Grand Court. No response was received Friday concerning whether the governor’s office would seek to appeal the matter.  

The complaint, which was eventually dropped by U.K. attorney Martin Polaine and carried forward by former Operation Tempura senior investigator Martin Bridger, accuses certain members of the Cayman Islands judiciary and current and former members of the attorney general’s office of misconduct during the corruption probe.  

A 185-page review of the complaint by U.K. attorney Benjamin Aina, QC, was used to inform former Governor Duncan Taylor’s 2011 decision to dismiss it. Mr. Taylor said there was no merit in any of the accusations made by Mr. Bridger against the people named in the complaint, and to release those claims might amount to defamation.  

An open records request was filed in 2012 seeking a copy of both the complaint and the governor’s response to it. Former Information Commissioner Jennifer Dilbert ordered the records to be released, leading to a court challenge from Governor Taylor’s office – the first such challenge to occur under Cayman’s Freedom of Information Law [2007].  

U.K. High Court Justice Sir Alan Moses, who heard arguments in the open records case last October in Cayman, sent the matter back to the information commissioner’s office, stating that the commissioner failed to consider whether release of the records might harm the effective conduct of public affairs. 

Mr. Liebaers’s decision on Friday represented the reconsideration of that matter.  

The governor’s office, according to the information commissioner’s decision, tried to use other sections of Cayman’s FOI Law to exempt the records from release, but Mr. Liebaers refused to entertain those issues since Judge Moses’s ruling was specific about which section – Section 20(1)(d) – of the law should receive further consideration. 

Section 20 {1)(d) of the Cayman Islands FOI Law exempts a record from disclosure if its disclosure would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.  

Mr. Liebaers’s ruling noted there had already been an “instructive parallel” situation regarding Operation Tempura’s effect on the conduct of public affairs in the September 2008 arrest of Cayman Grand Court Justice Alexander Henderson by the Operation Tempura team’s officers.  

“Justice Henderson…was very publicly accused, arrested, briefly held in police lockup, had his office and home searched and was subsequently released and fully exonerated in court,” the decision read. “I have not heard it said, and no evidence has been presented before me, that Justice Henderson subsequently experienced any negative consequences as a result of these events in the continued execution of his role as a Grand Court judge. 

“There have apparently not been any negative repercussions on Justice Henderson’s ability to function in his judicial capacity after the serious allegations to which he was subject were carefully considered and duly rejected.”  

The section 20 exemption did apply to a “short segment” on page 13 of the Polaine-Bridger complaint, Mr. Liebaers said, that would “harm the credibility of members of the judiciary.” It is the only section of either the complaint or the governor’s response to it that Mr. Liebaers said should be withheld.  

Governor’s stance 

The governor’s office presented several other reasons for withholding the records during the information commissioner’s rehearing of the matter.  

Those included the “unregulated nature of the media” in a small society such as Cayman, maintaining the integrity of future inquiries and investigations where the cooperation of witnesses was crucial, an assertion that “nobody is better placed than the governor” to judge whether prejudice to public affairs could occur by the release of records and finally, that the Grand Court judges themselves felt that the airing of unwarranted accusations would cause harm to themselves and the judiciary as a whole.  

Mr. Liebaers’s ruling rejected all of these claims one-by-one.  

The media’s role in a democratic society gives them “every right to express their views freely”, the information commissioner stated. Freedom of expression is now guaranteed under the Cayman Islands Constitution Order’s Bill of Rights.  

In any case, the use to which information released under the FOI Law is put should not be a consideration in the decision to release a record, Mr. Liebaers said. Under Cayman’s FOI Law, the government is forbidden even from asking for a requester’s name, much less their intended purpose in seeking the information.  

The information commissioner found it unlikely that any public official in Cayman would fail to cooperate with the governor’s office during the conduct of an inquiry, knowing that refusal to do so would likely lead to a further and more formal investigation.  

Mr. Liebaers also noted that it is the information commissioner’s role, not the governor’s nor his office staff’s, to determine whether the release of records would prejudice the conduct of public affairs. 

Jan-Liebaers

Mr. Liebaers

1 COMMENT

  1. It will be interesting to see how the governor’s office responds to this new order by Mr. Liebaers.

    The new reasons given to withhold the records would seem to suggest that the governor’s office does not feel that the local news media is capable of properly understanding and communicating the findings contained within the Tempura records. While I do share those concerns, I also agree with the statement from Mr. Liebaers that it is the information commissioner’s role, not the governor’s nor his office staff’s, to determine whether the release of records would prejudice the conduct of public affairs.

    The decision by the governor’s office related to this new order might help to give us some insight into how our new governor will lead during her time in office.

  2. As the original applicant and appellant I obviously welcome this ruling but even if the Governor concedes defeat something else has recently surfaced that tends to make the already muddy waters even murkier.

    Shortly before I went to the OffshoreAlert Conference in Miami it emerged that there may actually be two versions of this report. An original draft submitted to the FCO and Duncan Taylor in January 2011 and a substantially revised or dumbed down version that was completed in March 2011.

    The allegation is that, in a move not unlike the dumbing down of the 2009 Tempura/Cealt audit, what should have been an independent investigation was subjected to a process best be described as ‘command influence’. In other words the findings were re-written to suit the needs of the Governor’s Office. This is completely unverified (and probably now unverifiable) but my source is convinced that it happened. If true, this whole FOI fight was a complete waste of time and has really only contributed to the cover up.

Comments are closed.