EDITORIAL – When government decides what’s in ‘the public interest’

Governor Helen Kilpatrick

“[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.”

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  1. So this is great. With the stroke a of pen, HE the Gov and the FCO have demonstrated that they have absolute control over this country! Period. End of story. So if there is no transparency or checks even within the gov’t how can any investor in our country ever be confident their money is safe. This is very similar to the legal situation in Venezuela. The Gov should be ashamed. The Ritch Report clearly shows that Government is wrong and no one wants that seen. So we will live with the mess rather than clean it up.

    What if this report was about our Drinking Water? Or Health? How can we trust the Government to keep us safe? Are GMO mosquitos safe? We will never see this report.

    • I agree J Bodden , very valid questions and comments you’re asking . All of those questions should come up in the discussion /debate of the Ritch Report discussion , but I still thinks that this is a very important issue for the the new C I Government to consider for the future of the Islands .

  2. I see why the Governor would think that it was in the best public intrest to use the nuclear option to protect the Islands purse from law suites . But from this feasco did Government learn anything by making those kind of Laws and rules that they wouldn’t make those kind of mistakes again.

    I think that after the Election this year , that all members of the LA should have a two days private closed door meeting to discuss and debate the Ritch Report, since it wouldn’t and shouldn’t be made public . I really think that the government needs to put a good Immigration Law in place for dealing with PR , because it is not fair to keep people’s lives in limbo .

  3. Through her unilateral action, the governor has assumed the role of the higher court in regard to this seminal Freedom of Information case.

    This is the reason that I’ve asked the question in yesterday’s comments..’does she have THAT kind of power’ ?

    I couldn’t ever imagine Theresa May, the prime minister of Great Britain, ever having or being given the power to block the advance of a disputed case through the legal system of appeals to higher courts, even up to the Privy Council, which is the highest court of appeal in the British judicial system.

    In the event of this permanent residence issue turning into a land-mark and precedent-setting lawsuit, that report would be a major piece of evidence that has now been officially blocked from use in any such potential lawsuit.

    What a frightening and scary place the Cayman Islands is, when government officials can circumvent even the legal system by decisions that are deemed, ‘not in the public interest’.

  4. Ricardo,
    I agree that I agreed with your question , but we didn’t know and realize that there’s a nuclear option/ claws in the Law that the Governor could use in this case . But like I said I think that all of the new Government coming this year should sit in a closed door session to discuss / study this Ritch Report , so that they can make good Legislation on fixing the Immigration PR Law , so that this never happen again , and people are treated fairly in the future and not left in limbo .

  5. The Cayman Islands Government has always had strict secrecy about its methodologies and actions which defies any transparency to her citizens and international onlookers. The Cayman Government has consistently held to the view that outside influences may erode her sovereignty and invade her shores forcing Caymanians to lose control of their beloved country, wealth and prosperity. It’s a paranoid pirate mentality that is clearly aimed at being an exclusive club at best and blantantly discriminatory. No surprise that the Ritch Report will never be viewed by the public because it contains damning evidence of Cayman’s procedural and attitudinal arrogance to keep “undesirables” out of the Cayman Islands while they tolerate bad behaviors and criminals in their own citizens. As a former resident of Grand Cayman back in the 1960’s and 70’s I was clearly considered by some Caymanians as one or those questionable “expats” and not an equal even though my parents were both Naturalized with Cayman status. The fact that the Cayman Government has not currently addressed Immigration Law equitably is nothing new. It’s been going on for over 40 years.

  6. To give her credit, at least Kilpatrick has avoided all the BS that surrounded the Aina Report FOI by going straight in and effectively admitting that the Ritch Report contains damning material that, if made public, would do untold harm (and probably cost $millions) to the Cayman Islands if it was made public.

  7. HE has assumed the power of the people when she unilaterally made her decision. Clearly the decision should be made by the people during the upcoming elections.

    Perhaps it is time to consider a recall of the Governor, if there is such a think, and if so the Crown should be contacted about this.