Cayman Islands Premier Alden McLaughlin, citing a never-before-used section of the Freedom of Information Law, on Monday sought to block all efforts to make public a copy of an immigration consultancy report his government requested last year.
According to a “ministerial certificate of exemption” under FOI Law Section 25, Mr. McLaughlin states that he has concluded “it would not be in the public interest for ‘the advice’ to be disclosed.”
Mr. McLaughlin has previously argued that the consultant’s report by local immigration attorney David Ritch and his firm Ritch & Conolly, constitutes legal advice requested by the government following an August 2015 judgment issued by Cayman Islands Chief Justice Anthony Smellie. The judgment questioned a number of aspects of the system used to grant permanent resident status, which generally allows non-Caymanians to reside in the islands for the rest of their lives.
In the certificate of exemption sent to the information commissioner’s office Monday, Mr. McLaughlin said he had given “due consideration to the entire matter including the public interest factors” and concluded the consultant’s report would not be released.
The premier said a copy of the letter of engagement between Ritch & Conolly and the attorney general’s office was provided to the information commissioner, demonstrating that the report constitutes legal advice.
The information commissioner’s office had indicated Friday that it would take the government to court if a full copy of the consultant’s report was not provided to the office. By press time Monday, no report had been provided to the information commissioner. The decision as to whether the commissioner’s office would continue to pursue a court challenge in light of the premier’s exemption had not been made by press time Monday.
The Section 25 exemption in the FOI Law allows either the governor or “the minister responsible” for the subject matter of the open records request to issue an exemption and provide the reasons for the exemption.
According to the law: “Where a certificate is issued … under the hand of the governor, it shall be conclusive that the record is exempt and no judicial proceedings or quasi-judicial proceedings of any kind shall be entertained in relation thereto.”
The ability to preclude any judicial proceedings is not extended under the FOI Law to any member of Cabinet, including the premier, according to Acting Information Commissioner Cory Martinson.
The record requested may still become public “if such access would nevertheless be in the public interest,” according to Section 26 of the FOI Law. However, that section does not apply to legal advice given by or behalf of the attorney general of the Cayman Islands.
The premier’s certificate of exemption listed one area of exemption against the records release – a claim that the Ritch & Conolly consultant’s report was legally privileged. It did not explore any areas of potential public interest in favor of releasing the document.
An estimated 800 people residing in Cayman are currently awaiting word on the outcome of their applications for permanent residence; some of them applied as far back as late 2013.
Last week, one of the applicants – who applied for permanent resident status in June 2014 – sued the government, alleging it had acted unlawfully in failing to hear his application. In the application request for a Grand Court judicial review, the government is accused of adopting an “unlawful moratorium” on permanent residence applications since the enactment of the revised Immigration Law, which took effect on Oct. 26, 2013.