Following the recent foolish, if not foolhardy, restrictions on access to local court records, a tidal wave of negative public relations is heading for the Cayman Islands. Our treasured financial services sector could get soaked.
The threat – right now – is a one-man tsunami: David Marchant, who is the publisher of OffshoreAlert.com, a U.S.-based news site that bills itself as “the unofficial financial regulator.” Mr. Marchant, a veteran journalist, specializes in the exposure of offshore fraud and other fiscal shenanigans.
His website also includes a database of court writs from jurisdictions such as Bermuda, British Virgin Islands and Cayman.
Apparently, it is the publishing of public Cayman court documents that has drawn the ire of our judiciary (which is headed up by Chief Justice Anthony Smellie), and led to the attempted crackdown on who is allowed to photocopy writs, and for what reasons.
Though there may be other targets (or motivations), it does seem that sites such as OffshoreAlert were in court officials’ crosshairs when they pulled the trigger on the photocopy restrictions.
According to a statement from the court administrator:
“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 today’s edition of the Compass. This amounts to the unauthorized sale of those documents for profit.
“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.”
First, we’ll refer to the “breach of copyright” argument simply in order to dismiss it as a distracting obfuscation couched in legalese. Public records are just that – public.
The actual intent certainly appears to be to curtail the dissemination of public information, specifically through OffshoreAlert.
The court administrator states that notes or copies may be taken by people “for any legitimate purpose, such as background for investigative journalism in the public’s interest or for obtaining legal advice.”
Let’s “unpack” three key phrases: “any legitimate purpose,” “investigative journalism,” and “the public’s interest.”
When it comes to obtaining copies of public records, “any legitimate purpose” actually means “any purpose at all, or, no particular purpose.” If anybody, including Mr. Marchant, wants a copy of a public document – whether it’s for posting online, making paper airplanes or lining of hamster cages – he should receive it … no questions asked. It is absolutely inappropriate for an official to interrogate members of the public as to “why” they want copies of a public document. (The answer is: “It’s none of your business.”)
In regard to “investigative journalism,” who decides what is “real news” and what is “fake news”? Certainly not a public employee of Cayman’s court system. The same goes for “the public’s interest” – which, as we’ve stated before, is a concept that government officials are in the worst position of all to be trusted to assess.
Mr. Marchant is right. Through the court’s recent decision on access to documents, Cayman not only looks like a “secrecy jurisdiction,” it is acting like one. The court’s little battle with OffshoreAlert has the potential to result in huge self-inflicted wounds to Cayman’s international reputation.
Apart from the news site itself, OffshoreAlert hosts an annual conference that attracts hundreds of prominent international finance professionals from across the globe. This year’s conference just so happens to take place this coming Sunday-Tuesday in Miami.
The event will be brimming with “everyone who matters” to Cayman’s financial services sector, whether they’re providers, clients, rivals or … gulp … the international press, which will be very well-represented (including The New York Times).
On his home turf, at his own event, before a receptive audience, and armed with an impressive Rolodex of contacts, Mr. Marchant intends to make Cayman’s photocopy ban the central theme of his opening address to the conference. (He said so himself, in a blistering newsletter already sent to his list of 9,000 subscribers in more than 100 countries.)
Meanwhile, Cayman’s response to this emerging crisis so far consists of a single convoluted press statement from our court administrator … And nothing whatsoever from Chief Justice Smellie or private sector representatives.