The Cayman Islands Information Commissioner’s Office will appeal a January ruling by the chief justice which essentially ordered that a lengthy, $312,000 consultant’s report evaluating permanent residence issues be withheld from public view.
Acting Information Commissioner Jan Liebaers’s office told the Cayman Compass on Thursday that it had submitted a notice of appeal in relation to Chief Justice Anthony Smellie’s Jan. 26 ruling.
“The information commissioner’s office believes that there are several findings within the chief justice’s ruling which raise significant legal questions about the Freedom of Information Law, and therefore, merit further consideration by the courts,” the notice from Mr. Liebaers’s office read.
The Compass initially sought a copy of the report by the Ritch & Conolly law firm at the request of Premier Alden McLaughlin, whose government was looking for guidance on how to handle a burgeoning backlog of more than 800 permanent residence applications from non-Caymanians at the time. Since then, nearly 200 more people have applied for the immigration status which conveys the right to remain in the Cayman Islands for the rest of one’s life.
Chief Justice Smellie was brought into the matter when Premier McLaughlin’s ministry failed to turn over a copy of the consultant’s review at the request of Mr. Liebaers’s office. The information commissioner had sought the report, not for public release, but to examine it privately to determine whether any part of it could be made public. Mr. 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 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.”
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.
Mr. Liebaers said Thursday that he hopes to get clarity on the matter from the Cayman Islands Court of Appeal on several issues raised in the chief justice’s judgment. Those include directions on the powers the information commissioner’s office has to order government entities to release documents and the powers of government ministers to prevent that release.
“In my view, I have every right to see that document [the Ritch Report],” Mr. Liebaers said. “We’ve had plenty of cases in the past … formal hearings [before the information commissioner], where government was relying on legal professional privilege exemptions in the Freedom of Information Law to keep records from being disclosed when it was clearly found that claim was wrong.”
One such case, Hearing No. 25 before the information commissioner, involved the Cayman Islands Port Authority giving numerous documents to its attorneys and claiming they could not be released because their lawyers had possession of them.
Mr. Liebaers said since the chief justice’s ruling was made public, a number of government entities have been attempting to deny the information commissioner’s office access to records, even without a ministerial certificate of exemption similar to the one issued by Premier McLaughlin.
While the legal debate over the fate of the FOI Law in Cayman trundles on, hundreds of permanent residence applicants are awaiting decisions. Some applicants have been waiting since October-November 2013, according to government records.
The Immigration Department has announced the method in which it will begin hearing those applications, but it has not set a date for when those proceedings will commence.
Two cases before the Grand Court are seeking to challenge processing delays of two-and-a-half to three years on behalf of applicants who have filed for permanent residence. Those matters, involving an accountant and a financial services manager, are due to come back before the court in May.