Info boss strikes blow for transparency

| 26/11/2012

_1136210_secrecy300.jpg(CNS): In an exceptionally well researched ruling, the information commissioner has struck a welcome blow for transparency and openness in government and against secrecy. In her latest ruling Jennifer Dilbert has stated that the governor’s office must release documents requested by a witness in the police corruption investigation Operation Tempura that cost the country millions of dollars. The request relates to a complaint filed by the lead investigating officer on the controversial case, Martin Bridger, who claimed the enquiry was shut down early by the authorities. A report by Benjamin Aina, QC, was conducted into the complaint, which was dismissed, but the report was only released to Bridger and has been kept under wraps ever since.

John Evans, a former reporter for Cayman Net News who was closely associated with the discredited investigation, made an FOI request for the report both in the UK and here in the Cayman Islands and was declined on both occasions on a number of grounds, not least because the report was said to contain defamatory material.

In her research Dilbert explored the issue of defamatory material in requests and concluded that very few countries have this exemption in their laws, which led the commissioner to conclude that "the imposition of a categorical ban on the disclosure of any defamatory matter, as section 54(1) appears to do, is contrary to international best practice. 

Going back to the research of the Freedom of Information Working Group, which was tasked with advising Cabinet on the drafting of the FOI Bill, she found the paper accepted by government made no reference to defamation. She said that, in accordance with other sections in the law, records containing defamatory matter can be released and the law provides for protections in relation to such releases, which contradicts the provision in the subsection which appears to ban such disclosure unconditionally.

“If section 54(1) was applied as written, it would have the effect of prohibiting the disclosure by public authorities of any 'defamatory matter' under the FOI Law. This would include any materials that could be construed as being critical of government, of decisions of public authorities, or of actions of public officers,” Dilbert writes in her report.

“I consider this contrary to the objects of the FOI Law itself, as governmental accountability and transparency, free public discourse and public participation in national decision-making, which are defined as fundamental principles of the system of constitutional democracy in the section above, cannot take place under conditions where the general public does not have the right to express and impart information that is critical of government.”

The commissioner also points to the Bill of Rights and the fundamental right to freedom of expression.

“I consider that the categorical ban on the disclosure of defamatory matter in subsection 54(1) of the FOI Law is not reasonably justifiable in a democratic society, and I am convinced that it significantly and disproportionately undermines the public’s Fundamental Right to Free Expression guaranteed under paragraph 11,” she writes.

Citing the constitution and various examples of case law, the commissioner goes on to dismiss all of the claims by the governor’s office over why the report should remain secret and even suggests the report’s circulation in public may answer some of the many questions that remain about the entire episode.

“I do not lend much credence to the claim that its disclosure would, or would be likely to harm the public offices concerned. The Tempura and Cealt investigations have been discussed in the public forum for several years now, and it is my opinion that further credible information on the matter would help to clarify many outstanding questions, “ Dilbert writes in the ruling.

Dilbert also makes an important point in her ruling about the blanket use of court proceedings as a way not to release documents. She states that it is not enough to just raise the fact that a matter may form part of a legal action not to release records and that the authority should expand on arguments to this effect. In this case, she said, no further evidence as to how the release of the response records would prejudice the effective conduct of the court’s affairs was provided.

As a result, Dilbert has given the governor’s office 45 days to either apply to the courts for judicial review appeal or release the report, which may address the mounting conspiracy theories about Operation Tempura and what exactly the special police investigation team were doing and what, if anything, they ever uncovered.

See full report below.

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Category: FOI

Comments (14)

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  1. Anonymous says:

    Governors office will appeal … To Grand Court of the Cayman Islands.

    Governors office will establish an independent commission as the Grand Court is conflicted and unable to hear the appeal against this ruling.

    This will cost a lot to the public purse.

    • John Evans says:

      Yes, I am afraid you are right but they must ensure that any alternative to the Grand Court fully complies with ECHR Article 6(1) and that specifies, "an independent and impartial tribunal established by law."

      With due respect to Benjamin Aina QC, who is a very well respected member of the legal profession, one of the issues raised by the way Mr Polaine's complaint was handled is the absence of such a tribunal.

      That's no reflection on Mr Aina, who was simply doing the job he was employed to do, but it does raise questions about the committment of both the FCO and the Governor's Office to ECHR.

      Previous major investigations like the Levers' Tribunal and what has become known as 'Chuckiegate' were conducted before a public tribunal. Mr Polaine's complaint, in clear contravention of both ECHR Articles 6 and 14, was dealt with in secret and by one individual under the apparent control of an interested party.

      It is interesting to speculate what might have been revealed during a public hearing but it is quite clear that the FCO wanted it all kept under wraps.

      Do Caymanians really want to live life like that? Because to me it is a sad reminder of what I saw while working in Eastern Europe during the days of the Communist dictatorships.

      • Dennie Warren Jr. says:

        I agree with you John, but there are many in the Cayman Islands are okay with an FCO dictatorship, unfortunately.  See section 31(3) of their 2009 Constitutional Order.

      • Anonymous says:

        Why would the consideration of Polaine’s complaint trigger any Art 6 rights in the first place, given it would not constitute a determination of civil rights?

        • Anonymous says:

          Clearly you are aware of the wording of Article 6 or the way it has been applied in recent years.

           

    • Anonymous says:

      Another bright sunshine day lighting up Caymanian corruption!

      Thanks to the hard working FOI Commissioner and her staff.

      We paid the tens of millions of dollars, it is now our time to know who the real criminals are in our Islands and why Operation Tempura was stopped.

      Follow the trail even if it leads to the FCO and other UK Government agencies.

      Continue the investigation and arrest the guilty, lock them up, then throw the key in the Cayman Trench!

       

  2. John Evans says:

    14:53 read the decision before making silly comments.

    My submission to the appeal dealt with this issue very briefly and as follows –

    The PA claims exemption under Section 54(1)(a) in that it would be disclosure of defamatory material.

    In fact this was the original, and sole, exemption quoted in the initial refusal to release the documents to Cayman News Service in 2011 – the other exemptions seem to have come as an afterthought.

    Again this is a bit late because the UK press have already tried to name and shame those allegedly involved. But this gets a bit more complicated under the FOI Law because this exemption is qualified; the material can be released as long as it is not reproduced. In addition, under Cayman Islands’ Law making defamatory statements about members of the judiciary (as illustrated by the FT article) is a criminal offence so we need to question whether the comments are, under Cayman Islands’ Law, actually defamatory and if they are why has no action been taken about them?

    There is also another consideration about disclosure, or lack of it, in that I understand no one named, or defamed, in the complaint has been contacted or supplied with details of any allegations made against them as would seem to be appropriate under ECHR Article 6.

    I think this whole defamation argument is nonsense.

    Under UK FOI law (known as FOIA) defamation has never been an issue principally because if it was the exemption could (probably would) be unlawfully used to deprive individuals of their right of redress through the courts by suppressing the evidence required to pursue their complaints.

    The Cayman Islands defamation exemption, as I understand it, came from Jamaican law where it was already unusual (if not unique) in worldwide FOI legislation, but then Jamaica has the advantage of not being bound by human rights considerations like ECHR 

    Quite how the FCO and the Governor's office allowed Section 54 to be incorporated into Cayman Islands law when it clearly raised serious legal issues remains an unanswered question.

    Can I sum this up simply – if a public authority holds defamatory material about you (possibly malicious documents that might impact on your employability or your immigration status) would you be happy for them to be protected from disclosing it by an FOI exemption? 

     

     

    • Anonymous says:

      I suspect requesting publication of defamatory materialconstitutes the tort of unlawful act conspiracy. The request process could be restrained on a quia timet basis.

      • John Evans says:

        If you really believe that put your name to it and back it up in Law because the legal opinion I have is that this comment is complete BS.

        A quia timet injunction is defined under UK law as – A legal remedy sought in an equity court to enjoin someone from doing an anticipated damage. Such a remedy may be granted if the petitioner can show imminent and irreparable harm would be done.

        The way that works is that it deals with physical harm, the most recent example I know of involved removing trees and it was ruled on appeal to be inappropriate, and is not (unless you can show otherwise) relevant here.

        • Anonymous says:

          You really have no clue at all if you think quia timet relief is limited to physical harm. It can be used to restrain any threatened wrong.

    • Anonymous says:

      I'm not saying I disagree with Ms. Dilbert's opinion on the issue, but the problem is that the law is written in a manner that her rulings must abide by. The issue of whether the section is inappropriate is one that would need to be dealt with legislatively prior to her ruling the way she did. You can't just take a law (particularly the one that gives your position authority) and say I don't think this part of the law should apply, so I'm going to step outside my legally defined bounds and rule how I want to anyway. Whilst I understand this ruling leads to an end you prefer, the means by which it does so doesn't conform to proper procedure and legislative respect. The issue of whether the section contravenes the ECHR is one that would have to be taken up as an addendum to this overall issue, and decided upon, prior to Ms. Dilbert being able to step outside the current FOI law in this decision.

    • Anonymous says:

      Mr. Evans: what is your beef with this thing?  At least hopefully now we'll hear the end of this whole fiasco.  It's a shame that those guys wasted money and didn't get to the bottom of everything but as usual Caymanians closed ranks after complaining. So basically everyone is to blame for the whole fiasco.  End of story.

      Let's move on to the big story.  Getting rid of McKeeva.

    • Anonymous says:

      Releasing potentially defamatory material to the individual allegedly being defamed is entirely separate from releasing potentially defamatory material to a third party. Under the FOI Law if a document is released generally it becomes a public document and anyone can access it. If a document is released to a specific named individual because it contains that person's personal information (which includes opinions about the individual) it does not become a public document that anyone can access; the individual to whom it was released has ownership and associated liability as with any document to use the information legally.

       

      In sum: your comparison in the last paragraph is not appropriate.

       

      Oh, and I've read the decision and very much agree with commenters on Mon, 11/26/2012 – 18:10 and Mon, 11/26/2012 – 08:53.

  3. Anonymous says:

    This is an awful ruling.  There is no power to request the provision of information which would constitute a tort by publication of defamatory material.  A public official cannot force another public official to commit a civil wrong.