Disclosure could prompt lawsuits, information commissioner says
The precise amount Cayman Islands taxpayers spent paying off three former Royal Cayman Islands Police Service officers following various settlements related to the ill-fated Operation Tempura investigation cannot be given to the public because government would likely face lawsuits over the release of that information.
Acting Information Commissioner Jan Liebaers ruled last week that disclosure of amounts paid to former RCIPS Commissioner Stuart Kernohan, former Deputy Commissioner Rudolph Dixon and former Inspector Burmon Scott would result in an “actionable breach of confidence” by the government, which had pledged confidentiality to all three men as part of their settlement agreements.
Both Mr. Kernohan and Mr. Dixon were suspended in March 2008 during the course of the Operation Tempura police corruption investigation. Mr. Scott, who had already retired from the police service, was arrested along with Mr. Dixon in May 2008 over various accusations related to the Tempura case.
Mr. Kernohan was fired later in the year when he did not return to the Cayman Islands on the order of the former governor. He was never arrested or charged with a crime. Mr. Scott was never charged following his May 2008 arrest and was eventually exonerated. Mr. Dixon was prosecuted and acquitted by a jury in 2009.
Mr. Kernohan agreed last year to settle a 2009 lawsuit over what he alleged was a wrongful termination for which he was paid an undisclosed sum. Mr. Dixon settled his case out of court in 2011, again for an undisclosed sum. Mr. Scott also received some payment from government due to his arrest after suing the Cayman Islands government.
The Cayman Compass made an open records request more than a year ago seeking to obtain the settlement amounts paid to each former officer. The newspaper later offered to amend its request to seek a “lump sum” of all the payouts made.
The Portfolio of Legal Affairs declined to release any information, stating that all three men had objected and that all the agreements had been made in strict confidentiality.
In such a case, simply stating “confidential” on a document is not necessarily considered a protection from the Cayman Islands Freedom of Information Law, Mr. Liebaers said. However, where an “actionable breach of confidence” could occur – in other words, someone could bring a legal action and have a strong chance of winning – the release of records would be exempted, he said.
A common law public interest test must be weighed against the interest of keeping that information under wraps, Mr. Liebaers said. In this case, the public interest in disclosure would include “the accountability of government expenditure in the context of the publicly funded, and very costly, Operation Tempura.”
Operation Tempura, to date, has cost Cayman Islands taxpayers more than $10 million, not including the hundreds of thousands – possibly millions – paid to Messrs. Kernohan, Dixon and Scott.
However, the public’s right to know must be balanced against the privacy rights of the three former police officers involved in this case, Mr. Liebaers said, as guaranteed under the Cayman Islands [Constitution} Order, 2009, Bill of Rights.
Also, releasing details of the confidential settlements could open the government to further litigation over Operation Tempura, of which it has already seen its fair share, the acting information commissioner said.
“[There is] public interest in the government avoiding unnecessary and expensive litigation, which the portfolio says would surely follow if the settlement amounts were disclosed, or would be more likely to ensue in future cases if the government was unable to maintain confidentiality in such agreements,” Mr. Liebaers said.
The Compass reported in 2014 that government had spent more than $3 million fighting off legal actions and open records requests related to Operation Tempura, inclusive of a $1.275 million lawsuit settlement paid to Grand Court Judge Alexander Henderson over his wrongful arrest in connection with the investigation in September 2008. The $3 million does not include whatever was paid to Mr. Kernohan, Mr. Dixon or Mr. Scott and also does not include the latest Grand Court hearings held in February concerning further release of documents related to Tempura.
Former Auditor General Dan Duguay reported that the initial investigation between September 2007 and January 2009 spent $5.7 million. He also estimated another $1.1 million was spent between February and June 2009 on the continuing case. Subsequent investigations and court trials related to Operation Tempura and its spinoff Operation Cealt have never been assessed for costs.