November 18, 2019

Judgment re Judicial Review against ICO decision of disclosing Tempura

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wr-judgement-garnishmentThe following is a condensed version of the Judgment handed down by Sir Alan Moses in the “Matter of an Appeal Against the Decision to Disclose Records Held by a Public Authority and in the Matter of an Application for

On 8 February 2012, Mr John Evans requested disclosure from the Governor’s Office of a complaint relating to sections of the judiciary and the Governor’s response to that complaint under the Freedom of information Law 2007.

The Governor’s office refused that request on the grounds that it contained Defamatory material and was thereby exempt from disclosure pursuant to s.54(1)(a) of the Law.

On the 22 November 2012, the Information Commissioner overturned the decision of the Governor to withhold those documents pursuant to s.43 (3)(b) of the Law and ordered that the complaint and the Governor’s response setting out in detail his reasons for summary dismissal of that complaint should be disclosed.

This is an appeal by the Governor by way of judicial review of the Commissioner’s Decision pursuant to s.47 (1) of the Law.  I shall need to consider the nature of that appeal by way of judicial review later in this judgment.

Background

The facts relating to this request were set out in the introduction to the Commissioner’s decision.  In particular she cited the special report of the Auditor General dated October 2009.

SEE 1

The special report then goes on to detail the early part of the investigation which led to the Police Commissioner, the  Deputy Commissioner and  a  Detective Chief Superintendent being removed from active duty and put on required leave in May 2008.  It records that the investigation was made public in March 2008 and that the senior investigating officer, who by then had retired from the Metropolitan Police, was engaged as a consultant.   It then records that members of the public came forward to report additional allegations of wrongdoing and that a consultant firm was engaged to record the complaints.  It also refers to the arrests of a number of individuals, including Mr. Justice Henderson, one of the presiding judges on the Cayman Islands.   It sets out further history relating to those investigations and recalls that the  nature of Operation Tempura  and  the  succeeding  operation, Operation Cealt, were unique. There had never been a police corruption investigation of this magnitude in the Islands.

The immediate events leading to the subject matter of this appeal were recorded by the Governor in the skeleton on his behalf.  One of the legal advisers to Operation Tempura was Martin PoIaine.  Mr. Justice Henderson had complained against him and  that  had  led  to  his  being disbarred in  the United  Kingdom. He made a complaint to the Governor’s office following his disbarment concerning aspects of the investigation.  He made what the Governor describes as “serious and sensitive allegations” of unlawful behaviour against three serving members of the Cayman judiciary connected with the unlawful arrest of Mr. Justice Henderson.  He alleged that the judges had unlawfully interfered with the Operation Tempura investigations to which he had been at the time a legal adviser.  He abandoned the allegations but they were taken over by the senior investigating officer of Operation Tempura, Martin Bridger.

The Governor has acknowledged that allegations concerning Operation Tempura had been referred to in the press both in the Cayman Islands and elsewhere.  When he  had  been  seized  of  the  allegations  of  Mr Polaine,  the  then  Governor, His Excellency Duncan Taylor, issued a statement on 21 January, 2011. It read:

SEE SCREENSHOT 2

I should point out at this stage that the nature of the allegations obtained in the Financial Times’ article, the author of which plainly received a copy of Mr Polaine’s complaints, included details of the allegations against the three judges. The Governor said this, and continued:

SEE SCREENSHOT 3

The subject matter of the appeal, the request for the complaint and the report, were, as I have said, the allegations  made by Mr. Polaine and the Governor’s  response to it.

On 16 February 2012, the person who had sought disclosure, Mr Evans, appealed to the Information Commissioner.  By that time the Governor relied not only on the fact that  the  documents   contained  defamatory  material   but  a  number  of  other grounds in addition.    The Information Commissioner concluded that none of the sections of the Freedom  of Information  Law relied upon by the Governor entitled him to withhold the requested documents and she ordered that they be disclosed.

On 7 January 2013, the Governor issued an application for leave to apply for judicial review of the decision – it was cased in terms of traditional judicial review – and he filed a notice of originating motion on 19 February 2013 together with further supporting evidence.  I should note that on the 1st of March 2013 Mr. Evans withdrew his information request. It was plain that he was concerned about how he could afford to attend these proceedings and he also withdrew his appeal against the Governor’s decision not to disclose the requested documents.

The substantial ground of the originating motion and the forefront of the argument criticising the decision of the Information Commissioner was the contention of the Governor that she was entitled to withhold the information on the basis of s.54(1) of the Law. This reads:

SEE SCREENSHOT 4

Since the Governor had concentrated so fundamentally upon those provisions, by far the  greatest  proportion  of  the  Commissioner’s  decision  was  devoted  to consideration as to whether s.54(1 )(a) provides what the Governor now describes as an “absolute exemption” in relation to an official record containing any defamatory matter.   This was not surprising.   It was the ground on which the Governor had initially relied in refusing to disclose the material requested. It formed the basis of the   first   ground   in   the   Governor’s   final   submissions to   the   Information Commissioner.

The Commissioner commented that, as the Governor had submitted,  s.54(1) appeared to impose a categorical ban on disclosure of any defamatory material, (see paragraph 26 of her decision).  She then proceeded to explain why that apparently wide ban did not apply to the documents sought.  Her attempt to quality and erode the apparent  effect  of  s.54  revealed, so the Governor submitted in these proceedings, ten errors of law and gave rise to a dismissive portentous criticism that her statutory function was to apply and not to rewrite the Freedom of Information Law. The force of this remark in paragraph 109 of the skeleton argument on behalf of the Governor, however, rebounds if the Information Commissioner was herself led into a fundamental error of construction by the Governor herself.

EDITOR: The next section deals with SECTION 54 – “It is now submitted that s.54 does not exempt any records whatever.” The Judge agrees.

“The   Governor’s submission that s.54 exempts from disclosure documents containing any defamatory matter does not have a promising beginning.   Section 6(1) and  s.6(2) of the Law confer a  right to  access to  all records  save those identified as exempt.”

“There are a number of difficulties in the way of the Governor’s submission quite apart from the fact that it is incomprehensible why, if it was intended to include in the category of exempt records, records containing defamatory material, the Law did not say so.”

“I  conclude  that  s.54(1)  provides  no  exemption whatever in relation to the material it identifies and that it was not open to the Governor to rely on the fact that the material was defamatory.

“That conclusion means that  the attempts by the Commissioner to construe the section in a way which avoided an exemption of so wide a scope were unnecessary. She was right to observe the impact of such an exemption which would remove the obligation to disclose defamatory material, however justified its disclosure, and however unusual and surprising such an exemption would be.  But it is, in light of the view I have reached, unnecessary for me to comment on those attempts.  It is sufficient to say that if the Governor’s construction had been correct, the valiant attempts  of  the  Commissioner to ameliorate  its  heavy impact on freedom  of information would,  in my view, have failed. I need not decide whether the Governor’s construction is within the objectives of the law in section 4 or the constitution in clause 22 of the Cayman Islands Constitution Order 2009.  Certainly

I have not rejected the Governor’s construction on that  basis  but at  least the construction I have favoured is unarguably consistent with the objectives of the law and of the constitution.”

EDITOR: The next section identifies the role of this Court in these proceedings of Appeal By Way Of Judicial Review.

The next section deals with SECTION 20(1)(D)

“I should point out that s.20(l )(d) is  now  the  only  other  ground on which the Governor relies. This was not the stance taken by the Governor before the Commissioner.”

PARA 38. “The reasons given for  the  view reached that  there  was  a  real  and  significant prejudice to the effective governance of the Cayman Islands were the subject of dispute. The Commissioner  says  that  that  which  is  now  advanced  had  not previously been urged, but raised after the decision of the Commissioner had been given.  Either it should not be permissible for the Governor to rely on those reasons now or at least it casts doubt on their cogency and force.  I must therefore consider the reasons now advanced for fearing damage to the effective Government on the Islands and whether it is right to suggest that they are only relied upon when previous arguments have failed.  The essential argument now advanced is recorded in paragraph 115 of the written argument, the skeleton on behalf of the Governor.

It is said:

SEE SCREENSHOT 4 & 5 & 6

In short, raking over the coals of summarily dismissed allegations would, so she fears, only revive unfounded and malign attempts to undermine public confidence in the judiciary.

The question then is whether it is right to regard this as a new ground for reliance on s.20(1)(d).  When the Governor first announced he would maintain the secrecy of the reasons for the summary dismissal, he referred to the sensitivity of the allegations.  In submissions that he relied upon, coloured by his reliance on s.54, he stressed the defamatory nature of the material.  This was unfortunate because it led to scant reference to s.20(1)(d).  However, in his submissions to the Information Commissioner, he did refer at paragraph 28 to the fact that disclosure would significantly harm the privacy of the individuals named in the documents, result in the dissemination of unfounded allegations which would nevertheless discredit and undermine the offices of public officials and expose the government to damages in an action  for  breach  of  confidence,  defamation,  as  well  as the  possibility of damages under the FOI Law (see paragraph 28).  The argument was therefore based upon s.l7(1)(b)  rather than on section 2l(d),  but it is at least possible to identify a fear as to the problems created by the dissemination of unfounded allegations in that passage.

SEE SCREENSHOT 7 & 8

That is the short and only, which I can discover, reference to the transparency of the Governor’s own decision.  It is no more than a quotation of the definition of public interest contained within the Freedom of Information General Regulations (2008mrevision) at clause 2.

The response of the applicant, Mr. Evans, at the time was lengthy and detailed. He repeatedly drew attention to the public discussion of allegations which had already taken place.  He referred to the Financial Times’ article of 12 January 2011 and at page 95 of my bundle, stated that the material was “out  there and it was only a matter oftime  before it became public”.

In my view, the Governor failed to apply any adequate focus on the risk as she now puts it at the forefront of the reasons for fearing prejudice to effective Government. But, as it seems to me, he did articulate the reasons that she now advances to a limited extent and it would not be fair to describe the points she now seeks to advance as being new or merely an afterthought.

Equally, the Commissioner herself is not to be blamed for not focussing on this ground.  She was Jed by the Governor to concentrate on s.54 and other grounds now abandoned.  It is, therefore, not surprising that the main focus of her decision was not on the ground of exemption under s.20(l)(d).    Indeed, in these proceedings most of the criticisms against her relate to her decision under s.54 and only three relate to this ground.   Inevitably, this appeal’s focus changed once the true construction of s.54 came into issue.   I wish, therefore, to emphasise that the Commissioner is to be acquitted of all blame if insufficient concentration was not placed on the question under s.20(l)(d)  now  before this  Court.  The decision devotes most of its 23 pages to a thorough consideration of the defences to disclosure advanced by the Governor other than those under s.20(1)(d).   She dismissed the defence under s.l7(b)(i)  but added for the avoidance of doubt that even if  disclosure would have been an actionable breach of confidence, public interest demanded it.  It was, she said, in the public interest to disclose the report.

SEE SCREENSHOT 9 & 10 & 11

In my view, her reference to a high test in 104 does not assist.  Rather, the position is, as explained in Mcintyre, that what she had to consider was whether there was a real and significant risk of prejudice.   The conclusion she reaches does not refer back to the earlier passages I have quoted on where the public interest lies and therefore appears to be without reasons.

Her conclusion in I 05  is  that  credible  information  would  help  clarify  many outstanding matters.   She probably meant that the reasons why the Governor summarily dismissed the allegations were matters which, in the interests of transparency and accountability, should be revealed, but her brief sentence hardly makes that clear.   I repeat, however, it was not her fault.   If the armoury of the Governor was directed at so many other targets, the Commissioner is not to be blamed when she gave short consideration to this point.  But it is of significance, as she identified, that there had been continuing public discussion, to which the applicant  at  the  time  had drawn attention,  quite  apart  from  the  article  in the Financial Times in 20 II.

EDITOR: The Judge next refers to the considerable amount of material on the matter published in the press right up to 23rd April 2013.

PARA 51: The Commissioner was plainly right to take into account that the subject matter of the report by Mr. Aina, and a member of the Governor’s staff, had not gone away and was still being discussed.   The decision not to publish the reasons for the summary dismissal of the allegations against the judiciary had to be considered in that context.  The Commissioner was entitled to take the view that disclosure could not simply be dismissed on the basis that it would merely rekindle flames which had long since died away.  They had not.  Equally, no one could sensibly dismiss the views of the Governor as to the dangers of publishing reasons for the summary dismissal of the complaints.  The allegations summarily dismissed concerned the majority of the Cayman Islands judiciary at the time, including its 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 after consideration of a 445  paragraph  report of  some 185  pages, which  considered the  facts  and  the relevant law in great depth.  This report was reproduced as the Governor’s reasons for summary dismissal.   Indeed, it is hardly accurate to regard the dismissal as summary after such detailed and lengthy consideration. The Governor, as the report points out, was acting in a quasi-judicial function in deciding whether the complaints should be referred to the Judicial and Legal Services Commission.  It advises that limited disclosure shall be given to the complainant, to Mr Bridger, the Chief Justice and the Attorney-General.  But the report did not, because it was not tasked with it, consider the issues which the Commissioner and this Court has to consider under s.20( I)(d). It was not within the remit of the report.

The report also discusses the offence of scanadalising the judiciary at common law inn the context of the need to investigate the authorship of the letters in the press criticizing the judiciary in July 2007, which it was believed to be bogus.

EDITOR: The next few pages deals with confidence in the judiciary, Cayman being a small island and “the small judiciary which is less able to withstand a campaign of potentially fictitious criticism.”

The Governor referred ”to the importance of upholding confidence in the judiciary”.

Various case studies are cited and discussed at length.

“The importance of giving reasons hardly needs emphasis in the context of judges but may need underlining to those responsible for administration and to the public generally. The  giving  of  reasons  provides  a  framework  of  discipline for the decision-maker and compels the  decision-maker to justify his  conclusions. Of particular significance in this case, the giving of reasons provides 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 final paragraphs of the Judgment from Para 58 follow:

There is, so far as I have seen, no reference to that provision either by the Governor or  by  the  Commissioner. What had to be balanced was the public interest in ensuring  that  the  summary  dismissal  was  reasoned  and  transparent  against  the dangers  of  repetition  of  dismissed  complaints.    In my view, the  Commissioner failed to strike that essential balance either in her consideration  under s.20(l)(d) or under s.26 because even if she decided that there would be prejudice to the effective conduct of public affairs, she was still required to consider where the public interest finally lay.  Yet again, I repeat, it was not her fault that she did not do so.  The issue was never properly laid before her.  Nonetheless  I do not regard the paragraphs to which I have referred  as an adequate discussion of where the balance lay between those two aspects of public interest, repetition  of the complaints  and, on the other hand, open and clear explanation of the Governor’s reasons for summary dismissal.

In the light of that conclusion I must consider the appropriate remedy.  I say at once that I reject the suggestion  that I should  myself decide that the Governor  satisfied the burden  upon her.   The decision should,  in my view,  be taken  by the official tasked by the law to make such decisions; the Commissioner.  She, after all, has the expertise  of conditions  in the Cayman  Islands.   Whilst  I cannot  rule out another appeal, clearly it is far better if she strikes the balance rather than the Court.  It was suggested  that if, as I have done, I found the decision  defective,  I should  merely quash it in the light of the fact that the original applicant has abandoned his claim to access to the documents.   I reject that suggestion.   The issues are far too important to leave matters without final resolution.  My view is that the Commissioner should reconsider the exemption claimed under s.20(1)(d).

I hope I have identified  the  important  issues  which  fall  to  be  decided  without indicating  where  I believe  the balance  should  be  struck.    If others  think  I have nudged the Commissioner one way or the other, they  are mistaken.  I also  consider, subject to submissions as to orders that I should make, that the Governor should be permitted to put in further written argument should she be so advised to make good her claim.  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 the other 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.

I shall hear further argument in light of the decision I have reached as to the order I should make.   For the reasons I have given I allow the appeal in relation to the order of disclosure and remit the question of disclosure for further consideration of the exemption under s.20(l)(d).

Dated this the 23rd day of December2013.

Acting Justice Sir Alan Moses

Acting Judge of the Grand Court

 

 

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