The Cayman Islands Information Commissioner’s Office has been ordered, for a third time, to review its decision regarding the release of records related to the ill-fated Operation Tempura police corruption investigation.
According to a court order made public Monday, visiting Grand Court Justice Timothy Owen has quashed a decision by Acting Information Commissioner Jan Liebaers made in July 2014 to release certain records related to the Tempura probe.
“The decision is remitted back to [the information commissioner] to reconsider whether the requested records are exempt from disclosure …” Justice Owen’s order states. “It is declared that, on remission, [the information commissioner] is to use such investigative powers pursuant to the Freedom of Information Law as he considers necessary … for the purpose of his reconsideration.”
The records in question relate to a 2010 complaint initially filed by the Tempura probe’s former legal adviser, Martin Polaine, which was carried forward later by its senior investigating officer, Martin Bridger. The complaint, which alleges misconduct by certain Cayman Islands judicial and legal figures involved in the Tempura probe, was dismissed by then-Cayman Islands Governor Duncan Taylor, who said the claims in Mr. Bridger’s complaint amounted to defamation.
Mr. Taylor used a 185-page evaluation of the complaint, completed by U.K. attorney Ben Aina, to aid in his dismissal of the claim.
Retired Cayman Islands journalist and U.K. citizen John Evans filed an open records request under the Cayman Islands Freedom of Information Law in February 2012 for both the complaint and the governor’s evaluation of it. The governor’s office denied the request, a decision that was later overturned by the information commissioner.
Mr. Taylor challenged the information commissioner’s decision by way of judicial review. That case, following a first hearing in late 2013 when it was sent back to the information commissioner’s office for further consideration, headed back to court in February 2015. The second decision in the case resulted in Justice Owen’s order issued Monday.
Mr. Liebaers said the exemption referred to in Justice Owen’s order under section 16 [b] of Cayman’s Freedom of Information Law applies to records required for an ongoing law enforcement investigation or court proceeding. It’s often referred to as the “law enforcement exemption.”
This type of exemption typically would apply only until the completion of any criminal investigation and any subsequent trial that might arise. This raises the possibility that, at the end of whatever case local police might pursue against Mr. Bridger, the “law enforcement” exemption would fall away.
“Whether ultimately [the exemption applied] prevents publication of the whole of the governor’s report [or merely identified parts of it] or whether future events wholly undermine the basis for … the exemption are all matters for the information commissioner to reconsider … in light of the full exercise of his investigative powers,” Justice Owen’s earlier judgment in the case, made public in March, stated.
Mr. Bridger has been under investigation by the Royal Cayman Islands Police Service since last year, apparently in relation to an allegation of crime he made to the RCIPS in 2014 about the actions of former Governor Stuart Jack, Attorney General Samuel Bulgin and U.K. Foreign and Commonwealth official Larry Covington during the early stages of Operation Tempura. All three men denied the allegations made by Mr. Bridger. Police Commissioner David Baines has since said the allegations were “without merit.” It was not known who made the criminal complaint against Mr. Bridger.
Nine months have passed since Mr. Baines first publicly alluded to the criminal probe. He said recently that he has never been interviewed by police in connection with the case.
It will now be up to the information commissioner’s office, following a further review of the relevant records in conjunction with the governor’s office, to investigate further to determine the status of the ongoing criminal investigation into Mr. Bridger.
Following that review, the information commissioner could decide either to make the records public, if it is determined there is no “real” criminal investigation, or if that investigation has ended. The commissioner could agree the records are exempted under section 16 (b) of the FOI Law and deny their release. A third option might be to release the records in a partially redacted form, blacking out any sections related to the ongoing criminal probe.