FOI refusal in court hands

| 08/02/2012

(CNS): The failure of the Cayman Islands Port Authority to release documents to CNS as ordered is in contempt of court, the information commissioner believes and she has now written to the chief justice. In her 19th decision, published on 13 December, regarding an application for documents relating to the GLF cruise port negotiations Jennifer Dilbert ordered records be released by 27 January. Although the original applicant withdrew their request, CNS submitted a request for the same documents on 29 January, and as they were already subject to her decision, Dilbert directed the authority to immediately release the documents. However, the port has failed to do so.

When the authority failed to comply in the first instance with the commissioner’s order, the port was already in danger of facing court sanction as it had not met the release deadline or itself applied to the courts for a judicial review of Dilbert’s ruling. The port escaped legal action at that point, however, as a result of the originalapplicant’s notification that they no longer needed the records.

However, CNS then made a request for the same documents, and as the commissioner had already ruled that this information was not exempt under the law, she said they should be immediately released to the new applicant (CNS) in accordance with her December decision. But the authority has failed to release any information to CNS or even respond to the request sent on 29 January.

As a result Dilbert wrote to the courts on Wednesday in accordance with the freedom of information law certifying that the public authority in question had failed to comply with her ruling. According to the law, it is now up to the courts to consider this under the rules of contempt of court. The issue is now in the hands of the chief justice and it will be up to the courts to determine what should happen next in connection with the release of the information and the port’s contravention of the law.

Although the information commissioner has written to the courts on one other occasion regarding a failure of a public body to comply with a ruling, on that occasion the relevant records were released the following day and the courts were not required to intervene. If the documents in this case are not released immediately, the Port Authority could be the first public entity to face court sanction and as much as a $100,000 fine.

The documents that the port is trying hard to keep under wraps include several pieces of correspondence and reports that have already been leaked into the public domain. However, the minutes of the relevant meetings of the authority’s board when the GLF port proposal was under discussion and in particular in the wake of the decision by the premier to pull out of talks with the developer have not yetbeen made public.

Also the details of the settlement between the Port Authority, the government and GLF over the premier’s decision to move into negotiations with the Chinese firm CHEC also remain in question. Although it has been suggested that the deal has cost the public purse some $3 milllion, this has not been confirmed by government.

The premier stated in the Legislative Assembly at the end of last year that this settlement was not coming out of government coffers. Since then, other government members have contradicted that statement. According to comments made by Cabinet member Rolston Anglin on the local morning phone in show, Crosstalk on Rooster, the cash payment will come from public funds.

Category: FOI

Comments (52)

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  1. John Evans says:

    You should be very thankful for the integrity and determination of your Information Commissioner, Jennifer Dilbert, and the staff who support her.

    I am in a position to make a direct comparison with the way FOI works in the Cayman Islands and the way it is operated here in the UK, and we are definitely getting the proverbial short end of the stick.

    In the UK FOIA kicked in at the beginning of 2005 and it initially opened the doors to material that public authorities had carefully kept hidden for years. However, in the following seven years those doors have gradually been closed again, apparently with the full cooperation of the ICO's office in Cheshire.

    In theory the Information Commissioner here is independent, he is appointed by HM The Queen and reports direct to Parliament, but his senior officers are still clearly subject to political influences.

    Public entities in the UK are increasing getting more and more careful about what material they release to the public and have become extemely adept at interfering with the FOI process. One reason for this is that know the UK's Information Commissioner would never make a move like this on them. As one posting about the UK's ICO recently observed, they are about as useful as, "a chocolate teapot."

    They have been assisted in this by some major changes in the appeal process, which now takes place before a three-person tribunal and closely follows the lines of a court action. Initially it had been a fairly painless, although formal, exercise.

    As an example, I just prepared a response to the refusal by the FCO to release requested material to me and that document is 17 pages and 11,500 words long. It took me two days to prepare it. That's enough to deter most people from appealling an unreasonable decision and the one I am dealing with now beggars belief.

    In trying to exempt the documents I require the FCO, backed to the hilt by the ICO, have used precedents set in earlier appeals involving arms sales to Saudi Arabia and a quote, originally made in connection with rendition flights, referring to interest of foreign intelligence services and prevention of terrorism in the UK.

    The ICO/FCO then went on at length to claim they were acting in the best interests of the people, authorities and financial sector in the Cayman Islands without apparently having made any attempt to consult with those whose opinions they were seeking to represent. It is a sort of, "We know best, don't argue with us," attitude.

    I have even been barred from publishing details of the subject of the appeal at this stage, that information is apparently confidential and any documents produced so far are copyright the ICO or the FCO. LOL! I don't see much transparency there.

    What I can say is that the appeal relates to Operation Tempura and much of the material requested is already well documented in the public domain.

    As I said at the beginning, be thankful for what you have because we could do with someone of Ms Dilbert's calibre over here.

     

     

    • Anonymous says:

      John Evans give it up, you were an integral part of the conspiracy so stop trying to muddy de waters

  2. Anonymous says:

    Thank you Jennifer, keep it up. We are entitled to this information by law and we know they have something to hide or they wouldn't keep refusing to comply with the law. You are exactly the calibre of person we need in the post.

  3. Chris says:

     

    I wonder if the FOI legislation has extraterritorial reach…..or if it is perfectly legal for our politicians to go over to Jamaica to negotiate the Port deal with China Harbour with the idea that those meeting minutes will escape the long arm of FOI.

     The Caymanian people may be surprised what promises were made and what deals were cut overseas.

  4. Anonymous says:

    Himself to himself. Folks nothing will make a difference even if the fine is $1,000,000. A government-owned company getting fined and paying into central government coffers is a case of himself to himself. A shrewd government will likely advise the Port to not provide the information. Result, no release of information and monies for the government. Remember the Port is a 100% government owned company.

    • Anonymous says:

      I think the more important issue is them being forced by the courts to provide the requested information. God only knows why the courts have to be involved in that but it's obviously not good.

      • Anonymous says:

        Why the courts have to be involved? Obviously to give the legislation teeth. The courts can have people arrested and thrown in jail.  

        • Anonymous says:

          My point is the matter should not have to go that far.

          • Anonymous says:

            OK. The courts have to be involved because you are dealing with McKeeva Bush who has made it clear that he would rather curtail FOI than operate in a culture of freedom of information. Clearly he feels he has a lot to lose by simply handing over the information.   

  5. Anonymous says:

    Did you all read Big Mac’s sympathy seeking rant on Ieyenews.com today?
    Claiming he will not be seeking re-election as Premier! Someone as power hungry as he is not seeking election again as premier only a backbencher? More horse manure! Its just to smoke Ezzard away from going to the UK. Ezzard you really need to get there now in a hurry. Stop telling the enemy every move you are going to make its stupid.Keep your plans under wraps until you have made the appointments with the UK, then its ok to travel. Stop telling the enemy where you will shoot next, its senseless! Don’t tell them all who you will meet with, they’ll have Dart send a check to the UK to block you! I think a check preceded you to Jamaica when you announced you wwere going. Thiis is the most cunning and crafty government in the history of the Cayman Islands.
    ONE YOU CAN NOT TRUST.
    You guys underestimate this UDP government way too much. I know them very well.

    Now Mr. Bush knows what time it is and the time is saying
    “Its over for the UDP”

    • Anonymous says:

      My guess is that Bush has done a deal behind the scenes:  If he doesn't stand for re-election, the investigation into finanacial irregularites (and everything else) will be swept under the carpet.

      • Anonymous says:

        That would be a terrible disservice to the people of the Cayman Islands. A full blown trial would send a shot across the bow not only of Bush but those who think and operate like him who will be sure to replace him.

  6. Elucidator says:

    Contravention?  Is that the same as disobedience?  Is God running the Port Authority?  If not, who is?  Who decided they didn't have to release the records?  Has there been some kind of pay-off?  How about some truth and honesty.  This is where we need some of that "transparency" and law enforcement.

  7. Anonymous says:

    I wonder whether or not the withdrawal of the prior FOI request was a condition of settlement? I wonder whether the present FOIrequest is wide enough to include that confirmation?

  8. Nice says:

    Nice to see that the new board has not strayed far from the path of  no transparency and non-disclosure!

    I continue to be amazed by the level of incompetence and blatant disregard for the law these Authorities continue to display.

     

  9. Anonymous says:

    Ms. Jennifer keep up the GREAT work you are doing .

  10. Anonymous says:

    It would be better to run the CNS request through the proper procedure and time for response before ruling. I fear this will go nowhere in the court unless that is done.

    • Anonymous says:

      Government information is either open under the law, or it is not.  If it is, it should be open to anyone. There is no need to argue everything all over again.  It took almost six months to reach the final conclusions last time. Why would it be good to duplicate all that again? 

      The reasons why the information in question is open is discussed in great detail, with all the pros and cons considered, in the Information Commissioner's decision No.19 – see

      http://www.infocomm.ky/images/documents/ICO%20Decision%2019-01911%20Port%20Authority%20_FINAL_.pdf

       

      • Anonymous says:

        By law Government Information is open.  But McKeeva Bush does not want anyone to know what he is doing and that's why there are such difficulties in getting public information.  What are you hiding Mr. Bush?

    • Hezekiah says:

      The rule of Law oh you peasants who speak for. Speaking sake, your day will come when you are gonna look so stupido

  11. Anonymous says:

    Glad someone keeps on trying but I am afraid also this case will fizzle away into thin air and nothing much will come of it. You all really  don't expect that anyone is going to get jail time over this, do you? What other consequences could there possible be?

    • B.B.L. Brown says:

      What about replacement?

    • Stiffed-Necked Fool says:

      Of course it will fizzle away into thin air as we all know that "he" will make sure that the "right" people take care of it and let it fizzle away into thin air, as "he" usually does!

  12. Anonymous says:

    I fear the FOI commissioner has just sealed her fate.  Watch the premier ensure she is removed.

     

    • Anonymous says:

      Hi 08:35 FYI The premier cannot remove the FOI Comissioner. She reports directly to the Governor.
      Under this weak governor, anything is possible though. He has yet to prove
      his strength to the people, and has not yet gained the kind of respect that a real governor demands, because he has not put the Premier in his place and nothing has become of the investigation. Money is power and not too many people can resist it.
      This is the same governor that ignored over 4,000 signatures against what the Premier is doing against the people’s wishes. It is very disappointing and not very promising for the future of these islands.

      The governor’s actions is living proof of what kind of governor we have.
      Don ‘t expect too much.
      Why do you think Ezzard is leading a delegation to the UK? You think it is because we have good governance in this territory. No, its the opposite.,
      We have got to be really careful and watch very closely. Put everyone under the microscope. Even the corruption committee needs to be put under the microscope.Too much money being thrown around.

    • Anonymous says:

      Ofcourse he would do that, thats his MO:

      If someone actually does their job, as they are employed to do, fire them. If they dont do their job and do as I say, pay them more and keep them on.

      Firing Jennifer would be an appropriate actiion to coincide with his new found favourite word, transparency….

    • Anonymous says:

      The FOI commissioner has more integrity, guts and morals than the UDP cabinet in total. We should be encouraging her, not making comments like that, even if we think that might happen. Keep it up Mrs. Dilbert, a West Bayer we can all be proud of.

      • Anonymous says:

        "The FOI commissioner has more integrity, guts and morals than the UDP cabinet in total."

        That's not really a whole lot that you are putting her up against.

  13. Dred says:

    This just goes to reinforce the fact that we have in place the WORST government the Cayman Islands has ever seen. Every single thing MUST BE A FIGHT.

    The last time I heard this government said they were going to be TRANSPARENT. Where is the transparency here. You are about as transparent as a brick wall would be.

    Pathetic. UDP Government is PATHETIC!!!

    And you wonder why every is saying that every transaction smells of corruption. Why would it need to be hid if not that CRAZY decisions were made that could only be explained in this manner.

  14. dartanian says:

    Another fine example of what law abiding citizens the Premier and his UDP cronies are, the bigger question is what are they hidding.

  15. TheTruthWillOut says:

    Thanks Mrs. Dilbert. Your integrity is an inspiration. Word on the street was that Mr. Premier was hoping to gain favorwith you through the recent appointment of Mr. Dilbert. Very happy to see that such tactics do not work with you. You are our Eliot Ness! 

  16. Anonymous says:

    In other countries Contempt of Court is an offence usually punished by a jail sentance. Anyone know if its the same here? Board members beware

    • Anonymous says:

      Yes it is. A person ruled in contempt can be taken from the Court for immediate imprisonment. 

    • Really Anonymous says:

      In developed countries laws are laws backed by enforcement and persecution.

      In a third world country laws are just guidlines really and meant more for the "common" folk and not the "elite".

      Watch and see what Cayman is.

    • Anonymous says:

      Contempt of court is an offence here, but it's not enforceable like many other mandates from the CI Judicial System.

  17. Anonymous says:

    We will now see if Mac's "influence" reaches to the courts!

    • Dennie Warren Jr. says:

      Yes, you will see.

      • Alan Nivia says:

        It doesn't.  But those that have lost legal battles often poor judges of the system.

        • Dennie Warren Jr. says:

          “The information commissioner has ordered the content of a memo sent by the chief justice to the police regarding letters to the press he believed were scandalizing the judiciary to be released. Although the judicial administration had at first denied having the record, after it was discovered the public authority denied the request because it said that the investigation was not complete.  Commissioner Jennifer Dilbert said she remained unconvinced that the investigation was on-going as no evidence was produced to support the claim and ordered Judicial Administration to release the record, which relates to letters sent to Cayman Net News that a former grand court judge was accused of writing…”

          Source: http://centos6-httpd22-php56-mysql55.installer.magneticone.com/o_belozerov/31115drupal622/foi/2011/11/20/judge-directed-release-memo-over-letters-scandal

           

          Yes, we shall see.

  18. Anonymous says:

    Well done, Jan. Keep after it. You'll not get credit but many of us know what's going on.

  19. Anonymous says:

    The court should see this as an opportunity to set a precedent as well as the tone for future Agencies who may contemplate ignoring the FOI law.

    A fine would be an ineffective remedy as the fine the Port pays will come back to the Government as revenue from fines thereby removing the punitive aspect of the measure. The only way to make this effective is to either sanction the Board members directly or arrest someone.

    If the Court fails to deal with this in a proper way, you can just about tear up the FOI law, it won't be worth the paper its written on.

  20. Anonymous says:

    Thank You CNS!

  21. Anonymous says:

    Thank God for the FOI Commissionerand those who continue to file FOI requests!  It is a sad commentary on this administration that the people of the Cayman Islands are forced to go to such lengths in their attempts to find out what is going on in government!

     

  22. Anonymous says:

    Come on be reasonable. You can't shred documents AND hand them over.