Grand Court supports OCC powers

(CNS): A Grand Court decision has ruled that the Complaints Commissioner does have the authority to demand private and confidential information from a non-governmental entity concerning a private citizen while investigating a complaint. The need for clarity arose during an investigation by the Commissioner in which Cable and Wireless was asked for information about calls to and from a telephone owned by a C&W customer.

The investigation by the Office of the Complaints Commissioner (OCC) concerned an allegation that information had been improperly leaked from a government entity. A release from the OCC said the Office made a formal request on 5 May 2008 requiring Cable and Wireless (C&W) to produce a list of incoming and outgoing calls during December 2007 and January 2008 on a telephone belonging to a C&W subscriber. The subscriber was a private citizen who was not employed by any government entity.

C&W was uncertain about their obligation to comply with the request, and referred the question to the Information and Communications Technology Authority (ICTA), which felt unable to offer a conclusive opinion on the matter. The ICTA suggested the Commissioner apply to Grand Court for a declatory order.

Complaints Commissioner Dr John Epp then applied to the Court to clarify the Complaints Commissioner Law, which says that for the purposes of an investigation his office has the same powers as the Grand Court, including requests for documents, and specifically whether this authority extends to the power to demand the telephone records of private persons from service providers like C&W.

In making his decision, Justice Alex Henderson quoted a 1994 Supreme Court of Canada ruling on the scope of the duties assigned to the British Columbia Ombudsman, which found that the Ombudsman “should receive a broad, purposive interpretation consistent with the unique role the Ombudsman is intended to fill".

The Supreme Court also said, “(The Ombudsman’s) powers of investigation can bring to light cases of bureaucratic maladministration that would otherwise pass unnoticed. The Ombudsman ‘can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw blinds’: ReOmbudsman Act (1970).”

In delivering judgment on 4 September 2008, Justice Henderson said that given the breadth of the provision in the Complaints Commissioner Law, “it can hardly be doubted that the Commissioner is authorized to compel a non-governmental (private) entity to disclose private and confidential information concerning one of its customers, even though that customer is not employed in the government service.”

Justice Henderson noted that the Commissioner has the same rights as Grand Court to demand documentation, and in Grand Court there are no rights to argue that the evidentiary value of the information is outweighed by the privacy interest at stake. Moreover, it is the court itself which determines the question of relevance, he said.

“Applying these principles by analogy to the Complaints Commissioner, I conclude that he may demand the disclosure of private and confidential information from someone unconnected with government, and indeed from someone unconnected with the subject of the investigation where, in the opinion of the Complaints Commissioner, that information would be relevant to his investigation. He may demand such information from governmental departments and entities, from non-governmental entities and from private citizens,” Justice Henderson found.
Following the Grand Court decision, Dr. Epp said he was satisfied that the point had been clarified.

“The Grand Court decision supports the power of the OCC to demand the disclosure of information in order to shine a light on government maladministration. However, the Complaints Commissioner Law prohibits the OCC from disclosing confidential information obtained in the course of an investigation. Therefore, while this office can obtain such records, the public’s privacy is protected,” noted Epp.

The OCC is located on the 2nd floor, 202 Piccadilly Centre, Georgetown, Grand Cayman, phone number (345) 943 2220. The website is www.occ.gov.ky.