FOI appeal set for trial

| 29/07/2013

(CNS): According to court documents, the battle between Information Commissioner Jennifer Dilbert and the governor’s office over an FOI request has been listed for trial on 30 October. The current governor, Duncan Taylor, initiated the appeal against a decision by Dilbert ordering the release of records relating to the controversial internal RCIPS probe, Operation Tempura, but because he will be leaving the Cayman Islands in September, Helen Kilpatrick, who was announced as the country’s new governor in June, will pick up the case. If the case does go to trial later this year, as is expected, it will be the first courtroom challenge to a decision by Dilbert.

Sir Justice Alan Moses, who is currently handling the case, has said that John Evans, the person who made the original FOI request for the documents but who dropped his request following Dilbert’s ruling, has ceased to be directly affected by the case.

The issue surrounds a report on the results of a complaint made by Martin Bridger, the lead investigator on the ill-fated operation into alleged police corruption in Cayman that began in 2007. The FOI request made by Evans, a former reporter with Cayman Net News who was involved in the original investigation, was denied by the governor's office but following the FOI appeal process, the information commissioner ordered the report’s release.

Shortly afterwards, Evans withdrew his FOI application but by that time the governor had filed a court action to appeal the decision and, given the public interest in the document, the commissioner has nevertheless pressed on, hoping that the courts will back her order for release in line with the law.

The document is believed to reveal a number of embarrassing issues for the governor’s office over the handling of the entire bungled operation. It is also understood to detail the allegations by Bridger thatthe governor at the time, Stuart Jack, and Attorney General Sam Bulgin were both aware of an alleged illegal late night entry into the offices of Cayman Net News by John Evans and Lyndon Martin, who were employees of the newspaper looking for evidence of RCIPS corruption.

Although the real ins and outs and motivations for Operation Tempura remain a mystery, Bridger has implied that the entire affair, which lasted some two years, was based on the fact that the commissioner of police at the time, Stuart Kernohan, and senior police officer, John Jones, had unlawfully authorized the two reporters to ‘break-in’ to Net News and look for incriminating emails between their boss, the late Desmond Seales, and Deputy Commissioner Anthony Ennis, allegations which were very quickly discovered to be unfounded.

Bridger  has since stated that what seemed to be a bungled burglary was authorized by Larry Covington, the FCO’s regional security advisor, and that both the former governor and the attorney general knew that Kernohan had decided to take this course of action before calling in an outside police team to see if they could get to the bottom of the accusations that a senior RCIPS officer was feeding police operational information to the newspaper.

As the FOI challenge by the governor, which was filed in January with the courts, moves slowly through the judicial system, Bridger is also fighting for the right to use the report and related complaint as well as other documents he has in his possession in his own legal battled with Kernohan, who has filed an unlawful dismissal suit and civil action against theCIG and the Tempura boss.

Although Bridger has seen the report, which cost the public purse around $300,000 to produce, he has been bound by a confidentiality order not to release the content.

But some of the document’s content was reported in the UK press and the former Scotland Yard cop's main gripe was that his investigation was prematurely ended by the authorities in Cayman in what he claims amounted to an orchestrated cover-up of errors and bad decisions by the powers that be.

Given the costly efforts that the governor’s office continues to make to keep the content of the report secret, it is unlikely that trial will be open to the public. However, if the court upholds Dilbert’s decision or if Bridger wins his battled to use all of the document’s in the Kernohan case, then the Cayman public, which footed what is believed to be the $10 million bill for the investigation, Bridger may eventually be able to put the Operation Tempura pieces together.

See court order below.

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  1. The Philosopher says:

    Seems to me that many operations under the governorship of  Stewart Jack begs the question, why weren't  there audited accounts for operations like Tempura and others. Remember the "National Hurricane Fund"? Where are the audited accounts for the $26,000,000.00 [twenty six million] that was collected from and/for the people of these Islands. These funds were  to have been used for repairs  and/ or the rebuilding of damaged homes [worth $250K or less]?  There are still many of these homes that are still waiting to be repaired. Why did we have a [basically unknown]  foreign national named managing the operation? Why?            

    People constantly called for an accounting re the use of  the $26,000,000.00, but non was forthcoming! And until this day no one knows how the money was spent if ever. "Where Is The Money"?  [the man] who was in charge of the daily operations of this project suddenly left the Island [shortly before Stewart Jack] without even a farewell cocktail party being held for him! Guess he didn't do a very good job! Even after his departure there was still no accounting of the funds nor  any explanation as to what exactly happened with them 

    These are some of the things that go on day after day after day and are, in many instances  known to those whose responsibility it is to investigate and or bring to light these atrocities that are perpetrated  on our society! 

    The Cayman Islands  have too many foreign nationals in charge of and /or managing our most important  economic  institutions, and unless we stop this ridiculous trend,  we will continue to wonder why "we" are so rapidly losing control of everything that generates substantialrevenue for the country.

    Wake up Cayman!

    • Anonymous says:

      So the people siphoning off public money are all foreigners? Think you should look closer to home, try starting with past MLA's, maybe checking out personal interest in government spending, and look hard at any potential gain from deals done without due process.

  2. Anonymous says:

    While substantively the Governor is clearly in the right on this application,  I cannot see how the Commissioner would get past the threshold issue of jurisdiction.   The statutory regime does not seem to apply to the Governor.

  3. Anonymous says:

    It is situations like that remind us how fragile and limited our democracy is. If our elected, (appointed) rulers actually cared about what we think, they would inform us.

    If anyone thinks that they are really free, try swimming close to the edge of your goldfish bowl.

    We are about to welcome a new Governor. Does anyone seriously believe that she is going to come here with genuine concern?

    Ms. Kilpatrick, we've had some very weak men sent from the UK in recent years as Governor. We sincerely hope that you break the mould and give the people some confidence in the system.

    • Anonymous says:

      What a load of crap 09.38…

      The most democratic of proceedures is the court route to determine who is right and who is wrong according to the law when there is a disagreement between parties. Neither party here is shouting their mouths off about who is right and wrong, but wating for the due process of law.


      Democracy is alive and well in the Cayman islands as proved by this and recent elections.

  4. Anonymous says:

    Good Ms Dilbert keep up the good work.

  5. John Evans says:

    Just toset the record straight.

    I withdrew both the original FOI request and the appeal shortly after the Judicial Review process started in February because I felt the ICO was using the material for their own purposes. I particularly objected to the fact that their lawyers had denied me any opportunity to offer input into the proceedings.

    There appears to be an assumption within the ICO that any material submitted to them automatically becomes their property to do what they like with and that the original author can, unless they are able to pay for their own lawyers, be conveniently shut out. There's something very wrong there.

    It's also worth remembering that Martin Bridger could end this by simply releasing the original complaint to the media thus forcing Duncan Taylor to make the Aina report public. In my opinion the reason he doesn't (and the original author of the complaint Martin Polaine is also on record as not wanting to go down that route) do it is because it might result in a literal avalanche of defamation actions. Based on what has already been released to press in the UK I suspect it would also reveal the extent of the confidential material Bridger retained from the investigations.

    This Stuart Jack/Larry Covington argument is, in my opinion, a smokescreen. The documents I have show full Met Police involvement at Commissioner level while the searches were undertaken. It also doesn’t explain why, in February 2008, the Met were making plans to extend the investigations indefinitely and had recruited two private companies (one of them apparently headed by Bridger) to carry on the work.

    As for the costs? CI$10million was passed several years ago. Best guess now is probably more than double that and still rising, that’s why no one wants to complete the 2009 audit into Tempura/Cealt – the results will be too embarrassing.

    • Anonymous says:

      Well Mr. Evans, if this is the case and the new Premier is apparently concerned with fiscal responsibility, why doesn't he step in to staunch the bleeding?

    • Anonymous says:

      John, I really have to wonder whether you're being deliberately obtuse here.

      It doesn't matter whether you withdrew your request and/or appeal. The Information Commissioner issued an order, pursuant to her powers under the Freedom of Information Law, that two specific records should be made public. She did not order that Mr. John Evans should be given those records if maybe perhaps he sill happens to want them.

      When the Commissioner gave up on enforcing the order against the Port Authority because the requestor dropped the appeal I strongly disagreed with that course of action. I did recognise that the Port Authority seemed hell bent on arguing something that they would eventually lose and that she appeared to not want to pursue a costly battle. And, to be fair, the same result was achieved, albeit belatedly, at less cost. However, while there is more than one way to skin a cat and the lodging of a new request by CNS led to the eventual release of the records, it was still the wrong decision (at least in my mind) to not pursue enforcement of the order because it ignored the bad behaviour of the Port Authority and set a poor precedent.

      If an order was correctly made it should stand, regardless of whether there is a third party that is (still) interested in the contents of the record. Further, if someone is unhappy with a decision of the Commissioner (whether that someone is a public authority or an appellant) the only recourse is a judicial review, not a substantive appeal. If this were to be a substantive appeal, the action would bring both of the original parties before the Grand Court for a full re-hearing of the matter and the decision of the learned judge would replace the decision of the Commissioner, just as the decision of the Commissioner replaced the decision of the public authority in the first instance.

      However, that is not what the Freedom of Information Law provides. This judicial review will consider whether the action taken (i.e. the order for the Governor's Office to release the complaint and Aina report) was proper and in accordance with the relevant laws. There is no appellant. The public authority is challenging an order made by the Information Commissioner on points of law, and it is for the Grand Court to determine whether or not that order was in fact properly made.

      If the Grand Court finds in favour of the Information Commissioner, the order will stand. If the Grand Court funds in favour of the Governor's Office, the order will be quashed and the Information Commissioner will be directed to made a new decision on the appeal considering how the points of law have been clarified.

      This legal action also does not care whether you feel the ICO is using these materials for "their own purposes". In fact, that is EXACTLY what they are supposed to do. They are defending this decision and the legality of this order. Their lawyers can deny you the opportunity to offer input because you have no rights under the law and they are not defending your specific right to receive the records.

      In sum, with all due respect, this has absolutely nothing to do with YOU.

  6. Anonymous says:

    Shame on the FCO!

    The FOI law is there to ensure transparency, because contrary to FCO opinion, the people do have a right to know. Consider their stance on the ex Premier Bush. His way was to do his own thing without feeling the need for anyone to know what he was up to. Did he have something to hide? I imagine so, but the point is that through the Governor theyinsisted on applying proper due process, why? To ensure that everything was visible and therefore above board, and they were quite right to do so. Now, when it comes to the public knowing what happened in the highly expensive Tempura affair, they close doors. Long before that in the Eurobank trial it became evident that there had been wrong doing behind closed doors, and the FCO tried to cover that up too. From what I have so far seen, and some of the things I have heard from reliable sources, there has been wrong doing in this affair as well, if the wrong doers include the FCO, and maybe the Governor of the day then it isnt right that it should be concealed.

    Power to Jennifers elbow here, I hope she wins this case, and that will indeed shame the FCO.

  7. Anonymous says:

    She's not a governor, shes an administrator

    • Anonymous says:

      Yes, like you would know 07.34…why do people make such inane comments from positions of complete ignorance and not knowing the new Governor at all?