Tempura JR ruling revealed

(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.