“[T]he examination of the record by the information commissioner would not be in the public interest.”
— Cayman Islands Governor Helen Kilpatrick,
on the “Ritch Report”
The above statement signed by Governor Kilpatrick contains some of the most chilling words that a government official can utter in a supposedly free and democratic society: That sharing a piece of information “would not be in the public interest.”
The Ritch Report – the $312,000 consultant’s report on Cayman’s immigration system – was always a serious subject. But in the overall context of Cayman’s issues with 900-plus languishing permanent residence applications, potential human rights violations and looming legal ramifications, the governmental report on the topic was, relatively speaking, a sideshow to the main event.
However, the governor’s exercise of her “nuclear option” to block the Freedom of Information request has thrust the Ritch Report right back into the glare of the public spotlight.
Some background: In August 2015, Chief Justice Anthony Smellie issued a decision that was strongly critical of Cayman’s immigration system. The government then commissioned the report from law firm Ritch & Conolly, which was completed in mid-2016. After Premier Alden McLaughlin withheld release of the report, the Compass requested the document under the Freedom of Information Law.
The premier refused, saying the Ritch Report constituted legal advice and was thus exempt from publication. The Compass challenged that assertion and appealed the matter to acting Information Commissioner Jan Liebaers.
Mr. Liebaers demanded to see the report so he could verify whether it did contain legal advice. The premier refused. The matter was sent to Chief Justice Smellie, who in January sided with the premier. Mr. Liebaers appealed that ruling to the Cayman Islands Court of Appeal. Finally, Governor Kilpatrick stepped in and quashed the matter.
It doesn’t take much imagination to surmise what the Ritch Report most likely contains. It would be deficient if it didn’t include a retrospective of Cayman’s immigration policies over the years, an analysis of weaknesses in the current system, and an examination of potential risks to the public treasury. In other words, the Ritch Report may very well be helpful to people seeking to sue Cayman’s government over immigration malfeasance.
If Cayman’s taxpayers should expect the arrival of hefty legal bills in the mail – or not – either revelation certainly seems to be in the public interest.
If any officials’ motivation for concealing the Ritch Report is, indeed, to conceal flaws that have been identified in Cayman’s immigration system – then they have prioritized protecting the public purse, and public officials, at the expense of the individual victims who might be empowered to seek legal redress for our government’s abuse of their rights.
In Chief Justice Smellie’s January ruling, he dwells at length upon the right of legal professional privilege, devoting roughly half of the 44-page judgment to exploring and establishing the sanctity of the attorney-client relationship and extending that right to the premier and the government’s lawyers.
That “issue” was never an issue, at least not to us, who filed the FOI request. We would be the first to assert the inviolability of the “priest and penitent” paradigm between attorneys and clients. If the Ritch Report constituted legal advice to the premier, it should and must, in our opinion, remain confidential.
Our concern – and Commissioner Liebaers’s – never involved the sanctity of legal privilege, which the Chief Justice so ably defended. What we wanted to ascertain was whether the preponderance of the content of the Ritch Report constituted actual legal advice – or whether that was just a “relabeling” of the document to keep the findings secret.
Tuesday afternoon, the Governor’s Office issued a further statement, affirming that Governor Kilpatrick had indeed read the Ritch Report and concluded “that it does constitute legal advice.”
While helpful, our position remains that Mr. Liebaers’s challenge to the Chief Justice’s ruling should be allowed to proceed to the appellate court, the purpose of which is to review, reverse or endorse lower court decisions. Through her unilateral action, the governor has assumed the role of the higher court in regard to this seminal Freedom of Information case.
From where we sit, we cannot reconcile on how her decision possibly could be “in the public interest.”