The Ombudsman has been ordered to rehear an appeal by the Caribbean Utilities Company after an earlier decision by the office that the industry regulator should release costs and renewable energy studies to the public.
The move came after the Grand Court, sitting as a civil court, quashed the Ombudsman’s ruling that the Utility Regulation and Competition Office, known as OfReg or URCO, which polices the power industry, should release the documents because the hearing was “procedurally unfair”.
Justice Jalil Asif said in his written judgment that he would “remit the matter to the Ombudsman for her to rehear the appeal in a way that is procedurally fair to the applicant, to OfReg and to CUC”.
He added that he was not required to give an opinion on CUC’s complaint that Ombudsman Sharon Roulstone’s decision that the documents should be released was damaged by “two material errors of fact that she made”.
But Asif said in the judgment, handed down this week, “However, it does seem to me that the Ombudsman’s obiter [incidental] decision that disclosure would be in the public interest was seriously flawed for that reason.”
CUC welcomed the judgment and said it had guaranteed “a procedurally fair” process with would allow all the bodies involved to get a hearing.
Ombudsman’s ruling
The Ombudsman’s office ruled in 2024 that OfReg should release the documents after a long-running freedom of information dispute.
OfReg had agreed to release a small part of a 2014 CUC Cost of Service Study which CUC had supplied to support a bid to increase base electricity rates.
But the regulator refused to hand over the second report on the Incremental Distributed Solar Study 2023.
It maintained that commercial interests in a bidding process for renewable energy generation meant that the studies should not be disclosed.
But the Ombudsman ruled that OfReg had failed to demonstrate the connection between the records and the bidding process or what harm would be caused to CUC’s business interests if disclosure was made.
Chris Buttler, KC, who appeared for CUC, argued in Grand Court that the power company had been unfairly omitted from the formal freedom of information appeal process between the Ombudsman and OfReg.
He said that meant that CUC had not been given the chance to correct submissions from OfReg that failed to explain properly why the documents should be exempt from disclosure.
‘Conflict of interest’ concerns
Roulstone had raised concerns about CUC “co-designing the specifications of the request for proposal for an upcoming bidding process, in which they, themselves, will be an interested party” in her 2024 ruling.
She said that had the “appearance of a conflict of interest”.
But Buttler told Asif during the 2025 Grand Court hearing, “We say in our case that the Ombudsman’s erroneous findings that CUC was co-designing the [request for proposals] specifications was linked to the fact that she never put her questions about the RFP process to CUC.”
Asif said in his judgment that the relevant section of the Freedom of Information Act should be “read down [reduced in scope] to exempt disclosure of records where there would be an adverse effect on the property rights of a third party, contrary to section 15 of the Constitution”.
Section 15 deals with property rights and says “the government shall not take possession of any person’s property, or compulsorily acquire an interest in or right over any person’s property of any description …” except in exceptional circumstances.
Asif said, “However, I anticipate that in many such cases, suitable redaction of the records should be able to cater for this issue.”
He rebutted Buttler’s argument that Section 26 of the Freedom of Information Act, which says that, even if a record qualified exemption such as on commercial sensitivity grounds, the government should release it if it was in the overall public interest, should also be narrowed in scope.
CUC welcomes ‘fair process’ hearing
Asif said, “I do not accept Mr. Buttler’s argument that section 26 of the FOIA should also be read down, provided that the Ombudsman considers that any breach of Section 15 of the Constitution that would result from an order for disclosure in the public interest should weigh very heavily against such an order being made.”
A spokeswoman for CUC said that the court had ruled that the Ombudsman should reconsider the matter “with an emphasis on ensuring a procedurally fair process that allows all relevant parties an opportunity to be heard”.
She added, “The company continues to support a transparent and competitive energy market, while also recognising the importance of safeguarding commercially sensitive information which ensures that all processes operate on a fair and level playing field. CUC will continue to participate in the process as required.”
A spokeswoman for the Ombudsman’s office said it was “reviewing the judgment and determining what steps it will now take”.
She added, “We will provide updates on any further developments when we are able.”
The original freedom of information request that sparked the judicial review was filed by James Whittaker, president of the Cayman Renewable Energy Association, in 2023.
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