Courtroom battle not quickest route to records

| 14/02/2012

9062.jpg(CNS): Updated with Port Authority statement — In order to avoid a long legal battle in the local courts the information commissioner has withdrawn her recent letter to the chief justice certifying the non-compliance of the Port Authority in connection with her latest ruling. After taking legal advice about the documents, which the port authority is reluctant to release to new applicants without going through the process, Jennifer Dilbert said it will be quicker for CNS and other applicants to pursue a normal application process to get the information rather than fighting a protracted courtroom battle.

“Determining whether the records should be released by this route would probably involve a long legal battle,” Dilbert’s office stated on Monday. Although she had sought to enforce her December decision that the documents be released, making the records public, actually getting them into the public domain via the courts may not be the best route.

“It is my view that as the new applicants have the opportunity to seek these records by going through the normal procedure as set out in the FOI Law, this would be the most effective way to proceed, if they so desire. I am pleased however that the application of the FOI Law continues to meet the tests put forward in each case.”

Dilbert had originally sought to test whether the decision to the original applicant could also apply to subsequent requests. However, having sought legal advice herself it became apparent that the court process was likely to take much longer than having the Port Authority go through a repeat of the normal process with the new applications.

I response to the news that Dilbert had reconsider the court action the Port Authority issued a statement on Tuesday morning denying any breach of the law.

"The Port Authority continues to believe that the complaint should never have been made. There was no legal or factual basis for the ICO to suggest that the Port Authority breached the Freedom of Information Law," it stated. "The Port Authority recognises that its obligations under the Freedom of Information Law are coupled with the requirements of due process, for the benefit of both the public and the authority. The Port Authority will continue to comply with the Freedom of Information Law going forward."

Ironically, CNS made a request for the records on 29 January and as yet has not received an acknowledgemnt letter which, according to the law, should have been sent within ten days.

CNS will continue to pursue the records application made by the original applicant in the hope that given the commissioner’s existing ruling the documents will be released by 1 March.

The documents in question relate to the negotiations between the port, government and GLF Construction, the second developers who were in line to construct the cruise berthing facilities in George Town but with which the premier terminated talks on the eve of a planned main agreement.

After her 13 December ruling when Dilbert said the documents should be released, the port did not comply with the order within the 45 days given after an ICO hearing nor did the authority request a judicial review of her decision. Although Dilbert was bythen already in a position to certify the public authority for its failure to comply, given the decision of the original applicant to withdraw the request, the information commissioner did not force the issue.

However, CNS made a request for the same documents which the commissioner asked the port to immediately release as a result of her existing decision. The Port Authority sought to challenge that on the basis that the application was a new request. Although the information commissioner’s position will be the same, the new application will present an opportunity for the port to attempt to delay the inevitable by a further few weeks and probably see the authority seek some new exemption under the law to keep the documents under wraps, even though many of them are already in the public domain.

See related stories:

FOI refusal in court hands 

Port Authority escapes court

Port told to release GLF info

Category: FOI

Comments (14)

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  1. 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…”




    The Freedom of Information Law, 2007:

    S".55. (1) A person commits an offence, if in relation to a record to which a right of access is conferred under this Law, he-

    (a) alters or defaces;

    (b) blocks or erases;

    (c) destroys; or

    (d) conceals,

    the record with the intention of preventing its disclosure.


    (2) A person who commits an offence under subsection (1) is liable on summary conviction to a fine of one hundred thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment."

  2. R.U. Kidden says:

    Apparently there are some people involved in this who do not iknow the meaning of "transparency"….. only "obsfucation".

  3. Anonymous says:

    In other words, give certain people more time to shred or "doctor" up the documents.  This FOI law is turning out to be one big, sick joke on the public, a comfort to a fool, thinking we can ever have transparency in this banana republic run by one and only 1 person.

    • JAhDRead says:

      CNS where is d port authority statemen ya heading refers to. We de people want to see.


      CNS: See paragraphs 5 & 6.

  4. Anonymous says:

    Ms. Dilbert is right to follow the rules on the new application. The whole point of her position is to enforce the rules. Actually getting legal advice was a good move, and the advice is what any lawyer would give. Then if she has to go to court, she will be in a position to win and not be thrown out for not following the rules.

  5. Knot S Smart says:

    I think Mrs Dilbert is legally correct.

    Nevertheless I smell a rat.!

  6. Anonymous says:

    Court room battles over FOI.

    Cayman people paying to fight other Cayman people, and all within an environnment of at most 50,000. And all the funds for this eventually coming out of our already strained economy

    Who owns the information if not the Caymanian people?  Who is guarding it if not the Cayman people employed in Government? Who pays the bill for this?

    Whacky, whacky, and more whacky.


  7. John Harren says:

    Big Mac strikes again,

  8. Anonymous says:

    ?  Back peddling not a good sign.

  9. Anonymous says:

    This is crap!  Crap!  CRAP!


    Abandon ship!

  10. Kung Fu Iguana says:

    Disappointing.  The powers that be will just force the new application to go to Court.  This is a mistake given the high public importance and time sensitivity of these documents.

  11. Anonymous says:

    I don't like the sound of this. Did he get to her? Obviously if the normal channels were working there would be no dispute at all. Why would there be a protracted battle? It seems like an open and shut case.

    • Anonymous says:

      Why would it be an open and shut case? The original request was withdrawn. It is a very arguable case that any action enforcing compliance with a request that has been withdrawn falls away. Dilbert tried to do the best for the CNS request by allowing it nevertheless to piggy back the opriginal request. Good try but far from clear that that could be sustained. I don't see she had any choice other than to back down on that point to ensure that the underlying point … disclosure of the documents…will succeed and not be mired in the courts around a procedural ratehr than principle point.

  12. Anonymous says:

    Smart move. You have to go through the statutory process everytime or the court is going to throw it out.