Efforts to produce a public copy of a $312,000 immigration consultancy report were halted this week by a decision from Cayman Chief Justice Anthony Smellie.
The consultancy review examined various aspects of the Cayman Islands system of granting residency rights to non-Caymanians.
Chief Justice Anthony Smellie was brought into the matter when Premier Alden McLaughlin’s ministry failed to turn over a copy of the consultant’s review at the request of the information commissioner’s office. The information commissioner sought the report, not for public release, but to examine it privately to determine whether any part of it could be made public.
Acting Information Commissioner Jan Liebaers ordered the Cabinet Secretary to release a copy of the report last year, using powers granted to him under the Freedom of Information Law. Premier McLaughlin responded by issuing a “ministerial certificate of exemption” – preventing the Cabinet office from releasing the report to Mr. Liebaers.
Premier McLaughlin’s use of the exemption certificate under Section 25 of the Freedom of Information Law was the first time that section has been used by any government minister since the FOI Law took effect on Jan. 5, 2009.
Mr. McLaughlin argued that the consultant’s report, completed by local law firm Ritch & Conolly, amounted to legally privileged advice and that the advice should be protected just as any other confidential advice given by an attorney to a private citizen client.
The information commissioner’s office took the matter to court, seeking a ruling by the chief justice. Chief Justice Smellie decided on Jan. 26 in favor of the premier’s position.
“The starting point of the analysis must be, in my view, the recognition of the importance of the entitlement to legal professional privilege …,” the chief justice said in his decision. “The premier, as minister and public authority within the FOI Law, must … be recognized as a person entitled to the protection of legal professional privilege.
“The importance of legal professional privilege to the conduct of the affairs of the ministry of the premier for the advancement of the public interest is self-evident and may not be understated.”
The Ritch & Conolly report was requested by the Cayman Compass, as well as by another individual who was identified in Chief Justice Smellie’s ruling as a “member of the press.” After the Cabinet Secretary’s office initially declined to release the report, the newspaper appealed to the information commissioner’s office.
Given all the facts before the court, the chief justice ruled, it would not be “appropriate” to enforce the information commissioner’s order for government to produce the report. Chief Justice Smellie said there was no indication that government officials were in contempt of the information commissioner’s order or that Premier McLaughlin had acted in “bad faith” by refusing to disclose the Ritch & Conolly report.
Contacted Tuesday for reaction to the chief justice’s decision, Mr. Liebaers said his office was still assessing what to do with the pending FOI requests for the consultant’s report. He said an announcement on the issue could be made on Wednesday.
Premier McLaughlin’s office released a statement late Monday that essentially reiterated the chief justice’s Jan. 26 ruling and sought to reassure some 900 pending applicants for permanent residence in the territory that their matters would be dealt with “shortly.”
The Ritch & Conolly report was initially commissioned to address a separate ruling by Chief Justice Smellie in August 2015 that pointed out several failings and potential injustices created by the government’s system of granting permanent residence.
Since at least the beginning of 2015, no residency applications have been granted or denied as government leaders have struggled with implementing the new immigration system that took effect in October 2013.
According to the premier’s statement Monday, Cabinet will soon consider amending regulations to the Immigration Law. Once those regulations, which have not been made public, are approved, Mr. McLaughlin said the various immigration-related boards could resume processing residency applications and appeals.
“As I have said before, there is no easy fix for this,” Mr. McLaughlin said. “The root of the issue goes back to systems and processes that have been in place from the introduction of the points system in 2004.
“This has been a vexing issue, not just for those impacted, but for me and the government. However, we continue to be committed to finding a solution that is fair to all concerned and get the process moving again.”