The Cayman Islands Governor’s Office will spend nearly $190,000 on lawyers attempting to fight the release of certain records related to the Operation Tempura police corruption investigation.
According to an open records request filed by the Caymanian Compass, two local law firms and two private practice lawyers will be paid $189,916.48 for their work between May 2013 and February 2014 on a judicial review case before the Cayman Islands Grand Court.
The Caymanian Compass earlier reported that the Information Commissioner’s Office spent nearly $175,000 on lawyers relative to the same dispute.
Further records released by the local courts system indicate that a senior U.K. judge was paid more than $10,000 for travel and living expenses during a brief stay in Cayman for the Grand Court hearing, held between Oct. 28, 2013 and Nov. 1, 2013.
High Court Justice Sir Alan Moses ended up sending the case back to the information commissioner for further review after essentially deciding that certain issues regarding the release of the information had not been explored properly.
The records sought under the Cayman Islands Freedom of Information Law, 2007, relate to a complaint filed by Operation Tempura’s former senior legal adviser, which later was carried forward by the operation’s former senior police investigator.
In addition to the complaint itself, a 185-page evaluation of the complaint is also being considered for release under the request. Three judges on the Cayman Islands Grand Court, as well as former and current staffers in the attorney general’s office, are subjects in the complaint.
Operation Tempura was a two-year, $10 million investigation into alleged police corruption that ended with no criminal convictions. The probe also developed a number of spin-off investigations, under the heading of Operation Cealt, which led to a handful of police officers retiring or resigning, but no criminal charges were filed in any of the cases.
Former Governor Duncan Taylor rubbished all claims made in the complaint document following a $335,000 review that resulted in the 185-page evaluation written by a British Queen’s Counsel. Mr. Taylor said releasing the complaint now, after it was found to be untrue, would damage the reputation of Cayman’s judiciary.
Despite the governor’s statements, former Information Commissioner Jennifer Dilbert ordered the records made public, but was thwarted when the governor’s office challenged her ruling by way of judicial review. Justice Moses noted during the review hearing that, while the governor’s office may have focused on the wrong areas in attempting to withhold the information, there were other matters that required further consideration. The matter is now being reviewed again by the Information Commissioner’s Office.
The amount spent on the governor’s initial evaluation of the complaint, $335,000, has since been surpassed by the cost of attempting to reveal that information – approximately $375,000. It is likely that both parties will have to spend more on attorneys if the dispute winds up back in court.
Both men involved in making the initial complaint, retired U.K. lawman Martin Bridger and British attorney Martin Polaine, have repeatedly declined requests by the Compass to provide those records, citing legal reasons.
U.K. judge
Mr. Justice Moses was paid $7,833.30 for a round trip ticket from London to the Cayman Islands for his visit between Oct. 28 to Nov. 1, 2013. In addition, his accommodation expenses were $1,950.06, transportation costs were $216.62 and subsistence [often referred to as per diem expenses] were $615 for the five days.
Although a $7,800 plane ticket may sound expensive, it is fair to note that club/business class tickets for a five-day trip from London to Cayman were going for about £6,000 this week for a five day trip scheduled for the week of March 17-21.
In addition, Justice Moses was not paid any salary or emoluments by the Cayman Islands government for attending the hearing.
“No fees were payable as Sir Alan is a serving U.K. judge,” a courts representative stated in response to the open records request from the Caymanian Compass.
Courts administrator Kevin McCormac clarified that a serving, full-time judge in England and Wales is not entitled to take any fee for any work done payable from the public purse.
“He will continue to receive his annual salary in England and Wales, of course, and will have been allowed time off from his other duties in order to undertake this case in his capacity as an Acting Judge of the Grand Court of the Cayman Islands,” Mr. McCormac said.
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I was both the original applicant and appellant in this FOI request.
On 11 April 2013 I wrote to Lord Justice Moses saying – I regard the ICO’s appeal decision as weak and inadequate for the purpose of securing the release of the requested documents and, in my opinion, his November ruling appears to have supported that.
At that time, following a refusal by lawyers acting for the ICO to allow me, despite the fact I had extensive FOI experience and access to relevant material they did not, to in any way participate in this judicial review I had just decided to withdraw from the whole thing because it was clearly going to be a waste of time and money.
What I did not realise at the time was how much money we were talking about. Based on the material that has been made public, the two law firms used (and I am sure they will correct me if this is wrong) appear to have undertaken very little work that either of the parties involved could not have done in-house. The FCO has an extensive legal department and the ICO employs legally qualified staff so there is no obvious reason for them to engage outside assistance. In fact I have prepared more detailed FOIA appeal submissions than this in the UK without any legal support.
This level of expenditure borders on insane. In the UK it would have gone before a tribunal. The last one I did cost me little more than my travelling expenses to attend the hearing and the public authority used their own legal staff. I doubt the total bill for that got anywhere near to one-hundredth of what this judicial review cost.
How a bill for CI375K was run up dealing with what is a fairly simple FOI issue needs to be reviewed because it is putting an unacceptably high price on openness and transparency. The message that this seems to send out is that any authority with material they do not want to release can now simply use public money to try and out-lawyer the FOI process.
In fact I think this is now a matter the OCC should take on board with a view to putting in place safeguards to stop it happening again. In particular something needs to be done to protect the right of applicants and appellants to remain fully involved when a successful FOI appeal is challenged in court.