Tempura report release closer

| 05/11/2013

(CNS) Updated with statement from the governor's office: The senior judge who heard legal arguments between the Information Commissioner's Office and the governor's office last week over a disputed report regarding an internal police probe has ruled that the ICO was right that defamation is not enough to withhold the document from release. However, Sir Allan Moses has ordered that the information commissioner re-hear further submissions from the governor's office about the matter of prejudice of public affairs as he found that not enough attention had been paid to this element of the law during the hearing. Following comment from the ICO on Tuesday, the governor's office issued a statement Wednesday claiming that the judge had "quashed the Information Commissioner’sdecision" when he ruled that she had not considered the public interest test correctly over the conduct of public affairs.

On Tuesday morning the ICO explained that while the judge's ruling had not yet been released, he had cleared the way for the parties to reveal the outcome of his judgment.

“Important clarification of the law was achieved, as we now know that simply because a record may contain defamatory matter that will not be a basis upon which a public authority can withhold the record," Jennifer Dilbert, the information commissioner, stated. "This underlines the intent of the law, which is to provide transparency and accountability even where the content of records might be controversial.”

The office pointed out that having ruled out the issue of defamation, which was the major focus of the parties during the hearing, the senior UK judge, who visited the jurisdiction especially to hear this case, had determined that neither party had placed sufficient focus on the exemption related to prejudice to effective conduct of public affairs.

"As a result, the judge directed the governor develop and submit arguments confined to this exemption, and the commissioner is to reconsider the matter in light of these submissions and render a new decision," the office said. "We await the finalization of the detailed written judgment which will be made public."

The commissioner said that Lord Justice Moses had provided clarity on the application of the Freedom of Information Law in many key respects. Most importantly, it determined that records felt to contain any defamatory matter were not automatically exempt under the law, a conclusion reached by the commissioner in her decision that was the subject of the judicial review.

The governor's office commented on the judge's findings Wednesday in a short release.

"Lord Justice Moses ruled that section 54 of the Freedom of Information Law (FOIL), which relates to the disclosure of defamatory material, was not an exemption,"officials stated. "He also ruled that the Information Commissioner had not considered the public interest test correctly when interpreting section 20(1)(d) of the FOIL – that disclosure of the material would, or would be likely to, prejudice the conduct of public affairs.

'Lord Justice Moses therefore quashed the Information Commissioner’s decision and ordered her to reconsider it with reference to section 20(1)(d). He gave the Governor the opportunity to provide a submission on this.”

The judge has instructed the governor's office to re-submit arguments regarding the conduct of public affairs. However, with the defamation issue no longer a hurdle to release, that will remain the only area of consideration remaining to keep the document from release. It is not yet clear what timeline will be required for re-submissions and a new hearing and what further barriers the governor's office may depend upon if Dilbert still orders the release of the controversial document.

The record at issue is a report of a complaint made by the senior investigating officer in Operation Tempura, an internal police probe. Martin Bridger had complained to the governor about the way his investigation had been terminated, among other issues, and the report is an account of why his complaint was dismissed.

The report was then the subject of an FOI request. When it was declined, thesituation ended up as an appeal before Dilbert, who ruled that it was in the public interest to disclose the report. However, the governor's office then sought a judicial review to challenge the decision.

Parts of the report have already found their way into the British press but the document has so far remained under official cover here in the Cayman Islands and has not been leaked.

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Category: FOI

Comments (23)

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  1. Anonymous says:

    Can somebody leak these documents already!!!! Ezzard and Arden hasn't had a thing placed on their windshields in months…

  2. Anonymous says:

    When are we Caymanians going to realise that we are a British Overseas Dependent Territory? As long as we continue with that status we have NO say in any of these matters. This was just a futile exercise that will cost the Caymanian people oodles of money.  Until the day arrives that Caymanians decide to take charge of our destiny, then really we should sit back, grin and bear the humiliation.

    I would venture a guess that not ONE Caymanian will today boldly say it is time for political INDEPENDENCE from Great Britain.  Caymanians will argue against going independent by regurgitating what they have heard time and time again instead of listing the pros and cons and seeing what we can come up with.

    As long as we stay tacked on to the colonial hem of the King/Queen's garment then just suck it up – there's no other choice! 

  3. Anonymous says:

    This ruling is as clear as mud!

     

  4. John Evans says:

    Many thanks for that update CNS because it confirms my suspicion that the ICO's press release had left out a few facts. Thanks to the UK FOI process that preceded my Cayman Islands FOI application and appeal I have the FCO's complete argument against release of these documents. It runs to 115 pages and if the ICO, or her lawyers, had bothered to listen to me back in April they could have had a copy of it to use in preparing their case for the Judicial Review. There don't seem to be any polite words to describe what I see going on here but someone clearly isn't doing their job properly.

  5. Anonymous says:

    FCO cannot afford for the truth to come out in this fiasco. Tempura was an expensive bungled operation from day one that Caymanians are still paying for.

    Wake up Cayman the UK has been messing you about and using the classic divide and conquer tactics for years in Cayman. XXX

  6. Anonymous says:

    Why did the Governor not just point the FOI Law does not bind him?

    • Anonymous says:

      Because it does bind him when it relates to records that belong to the Government of the Cayman Islands as the Aina Report does.  

      • Anonymous says:

        But the documents don't belong to the Cayman government, they belong to the Governor.

  7. Knot S Smart says:

    After reading this – I suddenly remembered that I had a dog once that had the habit of chasing his own tail.

    Around and around he would go –  growling and trying to bite his stubby tail…

    • Anonymous says:

      In my mind, the defamation issue was all along about what was in the public interest — if you defame innocent public officials who are trying to do their jobs, you are not acting in the best public interest.  Thanks to Justice Moses for putting some sense into this case.  I don't know whether withholding this information would be covering up the FCO and the past Governor's actions, and if it is and they behaved badly I don't think it is in the best interest to keep that under wraps.  However, if it is defaming innoncent public servants trying to do their jobs, then it is not in the best interest for them to be exposed to public shame and then have to defend themselves.  I am sure, however, that the public servants involved will know how to sue if their names are libelled.

      • Anonymous says:

        I'd say that under ECHR Article 6 those named and accused of wrongdoing have a legal right to see what is in the complaint and the report even if these documents are never made public. We know from a UK press report that several senior members of the judiciary were accused of misconduct but who else did Polaine and Bridger target and where did they get the material to formulate the complaint from nearly a year after either of them had been employed on Tempura? This goes far beyond FOI and into some serious human rights issues. As a further example, Benjanim Aina was effectively appointed to act in secret as judge, jury and if necessary the proverbial executioner. Was that right? It all makes an interesting contrast to the way Martin Bridger's latest complaint against Stuart Jack and others was handled. That went straight to RCIPS. 

  8. Anonymous says:

    Don't be fooled by this verdict.

    While Sir Allan Moses appears to have ruled in favor of the Information Commissioner's Office he also seems to have offered the governor another chance to withhold the documents in question by requiring the information commissioner to re-hear further submissions from the governor's office about the matter of prejudice of public affairs.

    This ruling has been designed to allow the information commissioner to change her position on the release of the documents and to allow both the information commissioner and the governor to save face.

    • Anonymous says:

      Wonder which will havemore content the tempura information or the chief officers meeting minutes

  9. Anonymous says:

    In other words the judge has found a better argument for the crown to hide behind. I think weall know how this is going to turn out.

  10. Anonymous says:

    Time to slap a PII certificate on this report.

  11. Anonymous says:

    The $hit going hit the fan now..

    Watch and see if the new Governor does invoke executive privelege..

    We can't embarrass the UK now can we?

    • Anonymous says:

      Quite right 14.51, and why would you? Cayman is more than capable of embarrassing itself without any help from UK at all.

      At the end of the day, I suspect that it is actually the British press who will find and release the information, hoping to find a nice juicy scandal.

  12. Interested and Concerned says:

    OPERATION TEMPORA is proof to all Caymanians of what tapping into people's phone conversations and spying on the public will cost. If we don't learn from our lessons, we will repeat them again. 

    • Anonymous says:

      More so, Tempura will povide light to a list of wrong doers. I for one cant wait for this list, along with Mr. Elmers list-which im guessing is one and the same, it should make for an interesting- "shake up" -might we call it!

  13. John Evans says:

    Sorry, but as the person who launched the FOI appeal after re-opening an application orginally filed by CNS I don't share the optimism of your headline.

    I have a copy of the press release and the whole thing reads like ‘putting a brave face on because we screwed up’ rather than anything else.

    The fact is that the ICO made of mess of this because when they decided to concentrate on the defamation issues they lost sight of the wider argument, which had already been used in the UK, that the material was prejudicial to relations between the UK and the Cayman Islands. What they then failed toaddress were my arguments about the fine line between embarrassment to the FCO caused by release of the documents and any actual harm to their relationship with an OT.

    In fact it is very clear now that the contents of these documents would cause acute embarrassment to some very high-ranking officials in the FCO if they ever became public and I still doubt that will ever happen.

    Although enjoying some satisfaction from being proved right I do not see this as a move closer to disclosure, rather the opposite.