Information chief ‘surprised’ at governor’s decision

Liebaers considers legal options on “Ritch Report”

Acting Information Commissioner Jan Liebaers said this week that he was not consulted about Governor Helen Kilpatrick’s March 31 decision to quash the release of a $312,000 taxpayer-funded consultant’s report.

Mr. Liebaers said on March 30 that he would seek to appeal a Grand Court ruling that prevented him from seeing the consultant’s report, but the governor’s decision has now thrown that appeal into doubt.

“I was surprised,” Mr. Liebaers said. “I believed, and I still believe, we have legitimate reasons to seek this appeal [to the courts] and maybe if the governor had heard those reasons, she would have decided differently.”

Governor Kilpatrick’s office was contacted Wednesday for a response to Mr. Liebaers’s statements, but nothing was received by press time. In a statement released earlier in the week, the governor noted she had read the consultant’s report, known as the “Ritch Report,” and “is content that it does constitute legal advice.”

Governor Kilpatrick informed Mr. Liebaers’s office that it “would not be in the public interest” for the information commissioner to see a copy of the immigration consultant’s report written by the Ritch & Conolly law firm at the request of Premier Alden McLaughlin.

According to an email received Monday by the Cayman Compass from Acting Commissioner 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.”

Governor Kilpatrick later told the Compass that the costs of appealing an earlier court ruling that precluded the release of the document would be “costly and time consuming.”

Mr. Liebaers has sought to appeal that Jan. 26 decision by Chief Justice Anthony Smellie to the Cayman Islands Court of Appeal.

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 via the Freedom of Information Law. The consultant’s review was requested by the premier, whose government was attempting to address a series of legal deficiencies in the process of awarding non-Caymanians permanent residence.

On Wednesday, Mr. Liebaers said the appeal of that ruling had “certainly not been dropped”, and that the commissioner’s office met with its attorneys to determine if and how it might proceed.

Mr. Liebaers said he did not want the information commissioner’s office to appear “trigger-happy” in taking individuals to court “for this, that and the other.” However, he said there were matters of grave concern to the Freedom of Information Law regime if the chief justice’s decision was left unchallenged.

“If a public authority [government entity], for whatever reason, claims legal privilege, we could have a situation where we say ‘that’s the end of the line.’ That is surely not the intent of the FOI Law,” he said.

Mr. Liebaers also said he believes the intent of the commissioner’s office in requesting a copy of the Ritch Report has been misunderstood. Just because his office has sought a copy to read does not mean any of it would be released to the public.

“We had a situation where the premier’s office was refusing access [to the document],” he said. “Clearly, the ICO needs access to that record to do its job. The public authority perceives that as the information commissioner, perhaps, acting on behalf of the applicant [the person seeking the record]. That’s not so. Our examination of that record … in about 50 percent of the cases, concludes the exemption used to withhold the record was applied correctly.”

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 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 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.

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