The domestic dispute over the Cayman Islands court system’s new restrictions on photocopying public records has ballooned into a potential international incident. The publisher of a U.S.-based offshore financial news site is reacting strongly against a policy that he believes targets him.

David Marchant, the publisher of Miami-based financial news site OffshoreAlert, is planning to make Cayman’s court records policy the focal point of his opening address Monday at his upcoming OffshoreAlert North America Conference, which will draw hundreds of industry professionals and journalists from 25 countries.

“The new policy rolls back decades of transparency at the court and appears to be directly targeted at OffshoreAlert, which has been publishing publicly available Cayman court filings on a weekly basis,” Mr. Marchant wrote in an email blast Wednesday to 9,000 subscribers in 100 countries. “When a judge punishes such activity, instead of encouraging it, you know a jurisdiction has serious problems.”

The Cayman court system – headed by Chief Justice Anthony Smellie – recently began to restrict the photocopying of public records by citizens and the media. Mr. Marchant said his researchers were barred from their usual practice of photocopying and publishing local court writs earlier in the week, thus restricting knowledge of business dealings in the Cayman Islands.

“The court is not a private company,” he told the Compass on Thursday. “Their salaries are paid for by the public. They do not own these documents, and the general law is that there is no copyright on public documents. The documents are owned by the public. These people who work for the court need to wise up.”

The Cayman Islands Judicial Administration responded to an inquiry by the Cayman Compass on Wednesday, claiming officials were rectifying “unintentional departures in practice over time.”

People can still access and take notes on court records after paying a $20 inspection fee. Obtaining photocopies – for an additional fee of $20 per document plus $0.50 per page – is allowed for “any legitimate purpose,” including investigative journalism, with prior approval from the clerk of court.

RELATED EDITORIAL: Reputational alert: Cayman’s court secrecy on international stage

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What is prohibited, according to the statement from the court administrator, is the “wholesale reproduction” of records:

“The rules of court were never intended to allow the wholesale reproduction by photocopy of every record, thereby enabling the documents themselves to be available by paid subscription to another provider, all under the guise of transparency, as mentioned in your story in [Wednesday’s] edition of the Compass. This amounts to the unauthorized sale of those documents for profit.”

The new policy, which was issued with the approval of Chief Justice Smellie, is a significant departure from previous practice. Financial Services Minister Wayne Panton said he was only aware of the issue through the media, but he thought it would be best for public records to remain available for copying unless there is a compelling reason to restrict their use.

“Overall, it’s going to be better for the media and for everyone else to have unfettered access to public records,” he said when told of the court’s statement.

The court also claims that publishing public court documents online could constitute a violation of copyright for both the parties who filed their lawsuits and for the government as a whole:

“To allow this to continue unchecked would be tantamount to allowing an abuse of the process of the court and a breach of the copyright of the persons who paid for the creation of the documents that they file with the court for the purpose of access to justice. It would also allow the ongoing breach of the Crown’s copyright in the judgments of the Courts.”

Minister Panton, who is a former partner at Walkers law firm, said, “If a record is part of the public domain, I wouldn’t think on the face of it there is an issue of copyright. It seems to me to be a slight contradiction.”

Mr. Marchant said Thursday that he had never heard of that justification for clamping down on public access to documents. He had previously said that he felt unfairly targeted by the court’s decision to disallow the photocopying of official court records.

If it’s an issue of breaching copyright, Mr. Marchant said he would welcome arguing that in a judicial setting.

“If the court thinks we’ve done something illegal, sue us. I’m in the United States. I have substantial assets. Sue me. Why don’t they sue me? Because they have no claim in law. Everybody will laugh at them because it would be pathetic.”

He said, “This is the reality. The Cayman Islands is so embarrassed about the business it does and the disputes that arise from that business that they don’t want the outside world to know about it. However, they still want to continue taking millions and tens of millions of dollars from the same outside world.”

Mr. Marchant said that if the issue is not resolved by next Friday, he plans on issuing a monthly warning against doing business with companies in the Cayman Islands in his newsletter.

“Whoever is responsible for this is unintelligent and unworldly,” Mr. Marchant said.

“But I can tell you now, the court for ridiculous reasons has chosen to go to war with OffshoreAlert, and there will be consequences and repercussions only in the sense that I will explain to the financial world what is going on accurately and fairly. It’s basically a question of the court hanging itself with its own rope. They have provided me with three miles of rope from which to hang them. Thank you.”

The Compass contacted Alasdair Robertson, president of the Cayman Islands Law Society, and Jude Scott, the head of Cayman Finance, seeking comment on this story. As of press time, neither had responded with a statement for publication.

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8 COMMENTS

  1. definitely the Chief justice is correct in his decisions. It cannot be done elsewhere that persons make copies of such documents, so why does this gentleman think he can do it here. Cayman need to wise up to persons who think they can come here and do as they please. Those days are over and all must walk chalk line.

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    • Er … no … no other court has objected to OffshoreAlert publishing writs. Only your precious, ‘we love our secrecy’ Cayman Islands. OffshoreAlert publishes writs from many other countries. Why don’t you visit our website at http://www.offshorealert.com to educate yourself? These countries include Bermuda and the BVI.

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  2. I recently wanted to view court documents in Florida. The clerks office wanted tto know why I wanted to view them and, as I was not party to the case, they redacted certai information from the documents they allowed me to view.

    Yes I could pay $1 per page for photocopies but I don’t think I could have scanned and put them on an online database.

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    • What rubbish. You can view Florida court documents online. I do so on a regular basis. I have also published them online without any complaint. The only jurisdiction to complaint is ‘we love our secrecy but don’t let anyone know about it’ Cayman Islands.

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  3. To explain the procedure in Florida further, you CAN go online and look up a court case. You can view the parties involved and the docket filing history. But you CANNOT view the actual documents. Only in person.

    Of course this ruling disturbs Mr. Marchant’s business model in that he is taking documents that while publicly viewable this can only be done in person and publishing them to a PAID subscriber base.
    There is perhaps merit in having some sort of an online database,similar to Florida, if there isn’t one already. But the parties to a case are entitled to some privacy too.

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      • Mr Marchant: The Caymanian is a strange beast. Many believe the whole world owes it big time – It is their 100 sq mile rock and they will do as they please. The British don’t give a damn (90% of Brits don’t know where the Cayman Islands are and most don’t know they spend millions ‘protecting’ it) but without that little corner of their flag which shows the Union Flag, they would not be able to conduct their secretive business.
        If it was not for the 75% of Caymanians who are decent people, not letting their kids shoot / stab each other high on drugs (or to be more precise, high on the dollar that comes with the drugs trade) or kill themselves or others with their wild driving, I would not give them a passing breath.
        Fortunately, there is the Compass and others who are trying very hard against powerful interests to shed some light on all of this.

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  4. I don’t know about other nitwits but I got my experience sitting on a hard seat in the Clerk of the Courts Records office in Pinellas and Hillsborough Counties Florida.

    I spent hours looking up the docket listing on a computer and then asking for specific documents, which a clerk then went through to see if there was anything that a non-party should not see. Social security number for example.

    Trust me, if I could have done this from the comfort of my home office I would have done.

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