Tempura records case taken to court again

The Cayman Islands governor has again refused to give up records related to a complaint made in the wake of the ill-fated Operation Tempura police corruption investigation and on Monday signaled her intention to take the matter to court for a second time.

The decision was announced Monday afternoon, the latest possible date the governor could have answered Acting Information Commissioner Jan Liebaers’s order to release the records.

Mr. Liebaers ordered on July 10 that both a complaint by former Operation Tempura Senior Investigating Officer Martin Bridger and a response to the complaint from former Cayman Islands governor Duncan Taylor be made public. The current governor had two options: either follow the order or proceed with a judicial review application to challenge it.

Any judicial review action is likely to tie up the matter of the records release for months, at least. The initial open records request for the information was filed in early 2012.

“There remain several allegations and cases related to Operation Tempura that are not concluded,” Governor Helen Kilpatrick wrote in a brief statement Monday. “I believe that release of the documents at this time could potentially prejudice the progress of these.

“I am also concerned that releasing the documents at this time could breach a court order and [is] not in the public interest.”

The reference to ongoing court cases refers to a civil lawsuit filed against Mr. Bridger by former Royal Cayman Islands Police Commissioner Stuart Kernohan, who was fired in 2008. Although Mr. Kernohan settled his wrongful termination lawsuit against the Cayman Islands government for an undisclosed sum, the part of the lawsuit that involved Mr. Bridger was not settled.

There is also a pending action in the U.K. courts against Mr. Bridger initiated by the Cayman Islands attorney general. That matter has not been settled, as far as the Cayman Compass is aware.

In both cases, Mr. Bridger – who is eligible to receive more than CI$500,000 in legal assistance from the British government – has been encouraged to bring a swift resolution to all matters.

The court order referenced by Governor Kilpatrick presumably refers to an order made in 2013 by Cayman Islands Grand Court Justice Richard Williams. Mr. Williams ruled that certain documents held by Mr. Bridger related to the Tempura investigation should be considered legally privileged information.

Previous request

Former Operation Tempura witness John Evans filed an open records request in 2012 seeking a copy of both Mr. Bridger’s 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].

Mr. Bridger’s complaint made various accusations of misconduct against certain sitting members of the Cayman Islands judiciary, as well as staffers in the attorney general’s office. All the claims by Mr. Bridger were dismissed by then-Governor Taylor, who stated they were “without merit.”

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 judged in July that the governor’s arguments in the case had not pointed to one instance where the conduct of public affairs would be affected.

“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 [governor’s] 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.”

A 185-page review of Mr. Bridger’s 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 the accusations made by Mr. Bridger against the people named in the complaint might amount to defamation if they were released.

The governor’s office tried to use other sections of Cayman’s FOI Law to exempt the records from release the second time around, 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.”

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1 COMMENT

  1. Clearly not the response I was hoping for but, given the complex litigation currently on-going, understandable.

    The only good news is that this is not an outright refusal, more a move to seek judicial guidance about where to go next. Hopefully, if the legal actions detailed above are settled promptly an expensive court hearing might be avoided. Whatever is in the Aina report I doubt it is worth pushing the total expenditure on this farce past the one million CI mark, which going for another Judicial Review will inevitably do, just to see it.

    What I do find interesting in an otherwise fairly bland reply is the reference to documents that are subject of a court order. As the story reveals the only relevant documents that fit this description are those removed by Martin Bridger from the Operation Tempura records and unsuccessfully submitted as a belated addition to his defence of Stuart Kernohan’s claim.

    I have always suspected that these documents, whose existence was revealed by another of my FOI requests, were linked to the original 2010 complaint and that appears to have been confirmed here. This might also explain why Martin Bridger refused to comply with Duncan Taylor’s suggestion in March 2013 that he could release the original complaint. See – http://compasscayman.com/caycompass/2013/03/13/Governor–Bridger-can-release-records/ At that time both the ownership and the intended use of those records was in dispute so disclosing the contents of a complaint prepared three years earlier using them could have proved embarrassing.

    But what I still fail to understand is why the FCO ever decided to take this complaint on and make it the subject of an expensive, secret investigation in the first place. If the FCO could explain that it might answer more questions about what happened than releasing the actual report could ever do. What forced them to start it all off and open up this seemingly never-ending saga?

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