Tempura JR ruling revealed

| 10/03/2014

(CNS): The findings of Sir Alan Moses following a closed door judicial review last year between the offices of the information commissioner and the governor over a contested report relating to Operation Tempura has been released. Although the hearing and the UK judge’s decision was at first clouded in secrecy, the ruling has now appeared on the Judicial Services website without any redactions. The judgment reveals very little more about the report or the ill-fated investigation but it is clear that the judge saw genuine public interest in the document being released. Rejecting the exemption of defamation, the judge gives the governor another shot at the exemption regarding the interference in public affairs.

Justice Moses acted as a judge of the Cayman Islands Grand Court especially to hear the case, which is related directly to at least three members of Cayman’s own judiciary and was therefore a conflict for the local bench.

At the end of the hearing, which focused heavily on the governor’s claim that he could not release the report because of potential defamation, the judge rejected that claim. However, he accepted the appeal against the commissioner’s order to release the documentsuntil  the information commissioner re-hears another exemption made by the governor’s office under Section 20 of the FOI law, which deals with the potential interference with the general course of public affairs.

In the ruling the judge notes that because the governor had presented that exemption late in the day during the process of the information commissioner's hearing, neither side had properly argued or considered that element of the law.

While the governor’s office continued to see the possible release of the report as damaging to the local judiciary, as the complaint had made serious allegations against judges and potential undue influence and interference in the ill-fated police probe, allegations which the governor said were without merit, the judge did not agree that the report could be exempt on the grounds of defamation.

The original complaint, which the governor dismissed, was made by Martin Polaine, the legal counsel and advisor on Operation Tempura. However, faced with his own legal troubles he dropped the complaint but it was then picked up by his former colleague, Martin Bridger, the senior investigating officer on the discredited internal RCIPS probe.

The dismissal of that complaint was then set out in a report which remains secret.

A freedom of information request was made by a former witness in the Operation Tempura case for that report and it was refused. Following the FOI appeals process the information commissioner ruled that the report should be released. The governor continued the fight, however, to keep the document secret, even though the broad content was leaked to the UK press and in turn the local media.

When the governor filed for a judicial review of the information commissioner’s decision, Justice Moses came to Cayman last October to hear the case, which, as a result of an application from the governor, was heard mostly behind closed doors. Although the broad outline of the judge’s decision was eventually released to the public, the ruling remained under wraps but then it recently appeared in the public domain on the judicial website.

In the judgment, Justice Moses clearly has sympathy for the release of the report.

He notes that despite the governor’s best efforts to keep the content of the report secret it had found its way into the British press. In addition, numerous stories about Operation Tempura and this issue in particular had kept the story and the public's interest in it very much alive in the local press as well. As a result, the judge found that arguments by the governor that releasing the reasons why the complaint was dismissed would be a case of rekindling flames that had died away was incorrect, as the media fire had never gone out.

However, he recognised the concerns about repeating the allegations against the judiciary, including the chief justice. The “malicious and malign would probably rejoice in the re-publication of the allegations and ignore the fact that they had been dismissed,” the judge said in a 185-page report, in which he said he had considered the facts and the law in great depth.

In his ruling the judge also pointed to the need for administrative decisions to be public because it ensures decision makers have to think through and properly justify the decisions they make.

He writes that in this case, giving the reasons for the governor’s decision would “provide satisfaction to the public that the decision maker has approached his task carefully and conscientiously in proportion to the importance of the issues he is called upon to decide.”
The judge pointed out that the allegations which had been made were not just of concern to the governor but to the wider Cayman public.

“The public, it might fairly be said, was entitled to know that the summary dismissal was the result of a conclusion reached after thorough and reasoned consideration. That that factor is of great importance finds statutory support in the Cayman Islands law itself,” the judge states in the decision.

He said that during the arguments of the hearing on both sides in this case between the governor and the commissioner the parties should have considered the balance between the issue of the public interest in ensuring a transparent and reasoned dismissal of the complaint and the dangers of any repetition of the details of the complaint.

The judge found that the commissioner had not given this enough consideration but that was mostly because the governor’s office had not properly laid their arguments out on that point.The judge found that the commissioner was the right person to work out the balance between these issues once they had been properly argued before her when he ordered the rehearing.

The acting information commissioner confirmed that the governor’s office is expected to resubmit their arguments under Section 20 before the end of April. After that, the acting commissioner will re-hear the case on that one point and make a decision to either order the release of the report once again or uphold this exemption.

Before closing his ruling, the judge also noted that during the judicial review there were indications that the local judiciary made have played a part in the dismissal of Polaine and Bridger’s complaint by the governor.

Justice Moses writes: “There was during the course of submissions some discussion as to the part the judiciary on the islands may have played by way of formal or informal requests in the decision reached by the Governor. I say no more about that. There is no evidence one way or another and it is up to the commissioner with her powers of investigation to choose whether she wishes to investigate the extent to which the views of the judiciary played or should have played a part in the decision as to withholding the reasons given for the summary dismissal of the allegations.”

See full ruling below.

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Comments (15)

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  1. Anonymous says:

    "Sir" Alan Moses? I do wish we could all move beyond medieval times and cease such absurd forms of address. The geezer's name is Mr.Alan Moses, plain and simple. 

    • Anonymous says:

      No, once a judge of the High Court has retired it is appropriate to adopt form "Sir John Smith" when referring to them.  But then you use the word "geezer", which reveals your class background and shows why such niceties would be beyond you.  I did not know people really used the word "geezer", I thought it was an outdated cliche only used by poorly developed working class oik characters in low quality gangster movies.

  2. Anonymous says:

    What a lot of (our) money and distraction away from what the corruption probe actually set out to uncover!

     

    Where is the disclosure / FOI on that?!

     

    One thing we know is that there IS a lot of corruption in the country. And this Operation Tempura solved none of it. 

     

     

    • Anonymous says:

      Operation Tempura never seems to have tried to solve anything. It was an all-expenses paid holiday with us picking up the tab. 

  3. Anonymous says:

    Has anybody else figured out what they are talking about yet?  They have so many reports and reports about reports, I wonder if they will find the original report.  I want the one with all of the juicy gossip.  I think we should make a movie of it so we can get all the money back that we lost.

  4. Anonymous says:

    WTF

    Give us the report we paid enough for !!!

    • Anonymous says:

      Sounds like a nil- nil losing draw (everyone lost effectively) to me. Neither side scored any points,and will have to play again where another un- decidable event will be staged.

  5. John Evans says:

    Just FYI, I've had a copy of this since 28 January and I wasn't even a party to the hearing so it's not exactly a new release.

    However, as the story has re-emerged it begs comment, I think Lord Justice Moses was very kind to the ICO because, to be blunt, the way they approached the Judicial Review was a mess. In fact neither side comes out of this with much credit because they both handed their lawyers a bank cheque and let them get on with it, which as we can see was total overkill. 

    I already had a copy of the entire FCO submisson to a tribunal hearing in the UK and it clearly outlined how they would approach the legal arguments. It also showed, as I stated in April last year, that the ICO's arguments for disclosure were weak. However, I was excluded from even the preparations for the Judicial Review so none of this material was considered and as a result we ended up, at a cost of CI$375K, with an inconclusive result. If the material had been accepted by either the ICO or their lawyers when it was offered to them last March it would have become blindingly obvious that defamation was a sideshow and the real arguments involved Section 20.  

    In effect the whole process was wasted. The only people who gained from it are the lawyers who were really doing little more than work that both the ICO and the Governor's office could probably have done in house. FOI is not rocket science, I've prepared several appeals in the UK without having to resort to expensive legal assistance, and you shouldn't need top-end lawyers to make your case. 

    What this has revealed is a fundmental failure of FOI that needs to be sorted out because it puts an unacceptable price on what should be a simple right of access to public records.   

    • Anonymous says:

      John, I think that should be 'blank' cheque – if so you are correct.

      • Anonymous says:

        I see two thumbs down on both these posts – one from each of the law firms involved?

        The amount this cost is obscene! I think we need to see the itemised billing from both teams of lawyers and also be told the names of the idiots who authorised the payments.

         

  6. And Another Ting says:

    What a Ting, un solved mysteries in the US TV don have a patch on Tempura, ratted! Cha ratted a waste we money.

  7. Anonymous says:

    Why is the Governor not pointing out that the ICO has no jurisdiction to require production?

    • Anonymous says:

      Because the ICO has jurisdiction to order disclosure and neither the Governor nor the LA has power to over-rule that. That's why it's called 'Freedom of Information'.