Cayman Islands Governor Helen Kilpatrick has ruled it “would not be in the public interest” for the territory’s information commissioner to see a copy of the immigration consultant’s report that taxpayers spent $312,000 to obtain last year.
According to an email received Monday by the Cayman Compass from Acting Information Commissioner Jan Liebaers’s office: “The Information Commissioner’s Office was informed by the Cabinet Secretary that Her Excellency the Governor has signed a certificate under subsection 45(2) of the Freedom of Information Law. The certificate states that the governor ‘has determined that the examination of the record by the information commissioner would not be in the public interest’ but gives no further reasons.”
The decision by Governor Kilpatrick “shall not be subject to challenge in judicial or quasi-judicial proceedings of any kind,” according to the relevant section of the Freedom of Information Law.
The governor’s ruling ends efforts by the Compass and another requester, writing under the name “Bender Rodriguez,” to make public a copy of the document, which has become known as the “Ritch Report,” via the Freedom of Information Law. The consultant’s review was conducted at the request of Premier Alden McLaughlin, whose government was attempting to address a series of legal deficiencies in the process of awarding non-Caymanians permanent residence.
A backlog of more than 900 permanent residence applications filed since October 2013 are still pending.
Mr. Liebaers had earlier ordered Cabinet Secretary Samuel Rose to produce the Ritch Report for his office to review. That order did not indicate Mr. Liebaers’s intention to release it to the public. Rather, the order was made to assist the information commissioner’s office in its evaluation of whether the document – or any portion of it – should be public record.
“In the light of the recent ruling by the chief justice, the governor does not consider that further costly and time-consuming litigation on this matter is in the public interest,” Governor Kilpatrick’s office stated Monday.
The governor’s decision was made the same day – March 31 – the Compass reported on Mr. Liebaers’s intention to appeal a Jan. 26 ruling by Chief Justice Anthony Smellie that prevented the release of the Ritch Report to the information commissioner’s office.
Typically, the information commissioner is given wide powers under the FOI Law to request such documents from government authorities, except in cases where the governor has determined it not to be in the public interest. Ms. Kilpatrick’s decision to that effect on Friday is the first time the territorial governor has made such a ruling.
Mr. Liebaers said last week that he was concerned about the impact of Chief Justice Smellie’s Jan. 26 decision on the FOI Law and open records in Cayman, regardless of what decision was reached on the release of the Ritch Report.
“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.
It is unclear whether that appeal will proceed, given Friday’s decision by Governor Kilpatrick. Mr. Liebaers said Monday that the office was considering how to proceed in the matter.
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.
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 ruled in favor of the premier’s position on Jan. 26.
Mr. Liebaers said Thursday that he hopes to get clarity 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 release.
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 report.