Cayman’s Ombudsman has ordered the judicial administration to follow the law when it comes to the management, retention and disposal of court records.
The order came following an investigation into a freedom of information request in which the applicant asked for videos of a Grand Court trial he was involved in to be released.
The registrar denied the request and when the matter was later referred to Ombudsman Sharon Roulstone for assessment, the videos had already been deleted.
In her published decision on 22 June, Roulstone said the videos are records of a judicial function of a court and therefore do not apply to a freedom of information request.
However, she stressed that all records requested under the Freedom of Information Act (2021 Revision) should have a legal hold on them.
“As soon as the judicial administration became aware of the FOI request, it should have taken immediate steps to prevent the destruction of the responsive recording(s),” she said.
She added that it was “disappointing that the judicial administration did not put a legal hold on the disputed video recording, in order to keep all options open.”
The Ombudsman asked the judicial administration to develop and implement internal procedures to protect records following an FOI request.
Roulstone also recommended that the administration seek the assistance of the Cayman Islands National Archive in order to ensure it is compliant with the law, in particular in relation to the “legal requirements for the management, retention and disposal of records in its custody and control”, such as recordings of court proceedings.
She asked for a progress report within three months.
‘A matter for parliament’
The applicant, on 9 Sept. 2022, asked the judicial administration under the Freedom of Information Act for three video recordings of court proceedings he was involved in.
The proceedings consisted of hearings dated 2019, a consolidated hearing in the Grand Court in 2021 and subsequent proceedings before the Court of Appeal.
The applicant, who had been given audio recordings but no video, explicitly referred to the ‘right of access’ under the act in the request, the Ombudsman’s report said.
The registrar told the applicant on the same day that the request had been denied and quoted a decision from the Court of Appeal.
It said: “Neither litigants nor the public have the right to film the proceedings in court or retain any copy of a film.
“The public right is to be present and no more and there is no reason why [the applicant] should be treated differently.
“The fact that exigencies of an epidemic or distance lead to remote video links does not alter that position.
“When the court permits a video link it is enabling a virtual presence in court not a filmed recording.
“The right to film and keep a record of proceedings requires legislation and is a matter for parliament.”
On 16 Sept. 2022, the judicial administration’s information manager said video recordings are part of court proceedings and the law does not apply to the judicial functions of a court.
The next day the applicant requested an internal review which took place on 3 November – weeks after the 30-day legal time limit.
During the review both the court administrator and chief officer confirmed the information manager’s decision.
Shortly afterwards, the applicant made an appeal to the Ombudsman, which was accepted on 11 Nov. 2022.
The Ombudsman requested a copy of the videos from the judicial administration, but the office manager said they were no longer held.
“We were advised that once the audio recording is downloaded from the Zoom system, that we are currently using, after 30 days, the system deletes the video, audio, and transcript from the Zoom storage,” the manager said.
“All that currently exists is the hearing audio recording which has already been provided to the applicant.”
The administration later informed the applicant that the records no longer existed, and that one of the requested video recordings had never existed as no recording was made.
The matter was advanced to a formal hearing before the Ombudsman on the preliminary, jurisdictional question as to whether the requested records were subject to the FOI Act.
Judicial function
The applicant argued that the judiciary’s decisions regarding the disclosure of recordings are administrative in nature, the Ombudsman’s report said.
“The record was created by administrative staff in the exercise of an administrative function and not a judicial function,” he said.
He suggested this is akin to the compilation and disclosure of statistics and metadata relating to civil and criminal cases routinely published by the same administrative staff.
The applicant added that failure to disclose would, in fact, “interfere with the administration of justice”, and suggested it “contains information that is incriminating of a judge”.
However, the judicial administration refuted the applicant’s argument that the video recordings were being carried out as an administrative function.
They said the court permitted live streaming of hearings in the exceptional circumstances of the Covid-19 pandemic.
However, “disclosure of the transcripts, notes, audio, etc. was a matter for a judge”.
In her decision, the Ombudsman said “undoubtedly” a record of a judicial function may be created, copied, transcribed, handled, analysed, used and managed by administrative staff.
But that does not turn it into an administrative record, she said.
Roulstone said remote access by video link was facilitated because “important matters such as court proceedings” had to continue while the pandemic prohibited large gatherings.
All the recordings facilitated the court process, and therefore had a judicial purpose and were part of the “function of judging”, she said.
“They clearly formed an inherent part of the court proceedings and fulfilled a judicial function.”
She confirmed that the videos are records of a judicial function of a court and therefore do not apply to a freedom of information request.
The Ombudsman investigates complaints about government services and police misconduct as well as deciding appeals dealing with requests for government records.
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