December 3, 2021

Cayman’s ICO overturns Governor’s office decision to withhold “Tempura” records – Full report

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ICOActing Information Commissioner, Jan Liebaers, in a written decision on 10th July has “overturn the decision of the Governor’s Office to withhold the requested records by virtue of section 20(1)(d)of the Freedom of Information Law 2007.

 

From ICO Hearing Decision

  1. FINDINGS AND DECISION

Under section 43(1) of the Freedom of Information Law, 2007, I make the following findings and decision:

Findings:

I find that the single segment on page 13 of the Complaint (consisting of the third bullet point on page 13, after the phrase “…and his room” and before the next paragraph starting with “There is also …”) is exempt from disclosure under section 20(1)(d) of the Freedom of Information Law

2007. I have considered the public interest pursuant to section 26(1), and I find that it would not be in the public interest to disclose this segment.

I find that the remainder of the Complaint and the entire Response by the Governor are not exempt from disclosure by reason of section 20(1)(d) of the Freedom of Information Law 2007.

Decision:

I hereby overturn the decision of the Governor’s Office to withhold the requested records by virtue of section 20(1)(d) of the Freedom of Information Law 2007 and require theGovernor’s Office to  disclose the records no later than 45 days from the date of this decision, except in regard to the single segment on page13 of the Complaint, (consisting of the third bullet point on page 13,after the phrase“…and his room” and before the next paragraph starting with “There is also…”), to which the exemption does apply,and which consequently does not have to be disclosed.

“Under section 47 of the Freedom of Information Law,2007,the Governor’s Office may,within45 days of the date of this Decision,appeal to the Grand Court by way of a judicial review of this Decision.

“If a judicial review is sought, I ask that a copy of the application be sent to the Information Commissioner’s Office immediately upon submission to the Court.

“If judicial review has not been sought on or before 25 August 2014, and should the Governor’s Office fail to disclose the responsive records in this matter, I may certify in writing to the Grand  Court the failure to comply with this Decision and the Court may consider such failure under the rules relating to contempt of court.”

(signed)

Jan Liebaers

Acting Information Commissioner

10 July 2014

However, it is likely the governor’s office will ask again for a judicial review that will require more delay and the country in even more expense.

Part of the ICO document (A-C, Part E above) follows. The whole of the document can be downloaded at: http://www.infocomm.ky/images/ICO%20Decision%2041-00000%20Governors%20Office%202014-07-10.pdf

ICO Hearing 41-00000 Decision

The Governor’s Office

Jan Liebaers, Acting Information Commissioner for the Cayman Islands

10 July 2014

 

Summary:

An Applicant was refused access to documents relating to a complaint made to the Governor, and the Governor’s response to the complaint, in relation to Operation Tempura.

The records were withheld in full by the Governor’s Office and an Appeal of that decision was made to the Information Commissioner’s Office. That Appeal resulted in a Hearing decision (Decision 24-00612) by the Information Commissioner which was appealed by the Governor’s Office to the Grand Court by means of a judicial review. The Court returned the matter to the Information Commissioner for reconsideration whether the records are exempt from disclosure by reason of section 20(1)(d) of the Freedom of Information Law, 2007.

After receiving a new submission from the Governor’s Office, the Acting Information Commissioner decided that – except for a single segment on page 13 of the

Complaint – the records were not exempted under section 20(1)(d) of the Freedom of Information Law, 2007, and ordered that the records be disclosed.

 

Statutes Considered:

Cayman Islands Constitution Order 2009 (SI 2009/1379)

Freedom of Information Law, 2007

Freedom of Information (General) Regulations, 2008

Grand Court Law (2008 Revision)

 

Contents:

A.        INTRODUCTION

B.        BACKGROUND

C.         ISSUE UNDER REVIEW IN THIS HEARING

  1. CONSIDERATION OF ISSUE UNDER REVIEW
  2. FINDINGS AND DECISION

 

  1. INTRODUCTION

[1]       On 8 February 2012 an Applicant made a request to the Governor’s Office under the Freedom of Information Law, 2007 (“FOI Law”) for:

1. A complaint originally filed by Martin Polaine, former legal advisor to Operation Tempura, alleging interference in the investigations conducted by that operation. According to Mr Polaine, “my complaint related to sections of the judiciary, to the Attorney General’s Chambers and the FCO (Foreign and Commonwealth Office).” This complaint was taken over by Martin Bridger, former SIO of Operation Tempura, after Mr. Polaine refused to accept the terms under which the investigation into the allegations was [sic] to be conducted.

2. The Governor’s response to the complaint, which I understand was based on the findings of an investigation conducted by Benjamin Aina, QC and was released to Mr. Bridger in March 2011.

[2]       In response, the Governor’s Office denied access to Mr. Polaine’s complaint and the Governor’s response (“the responsive records”) on 14 February 2012, relying on section 54(1)(a).

[3]       Since HE the Governor had made the initial decision, an internal review was not possible, and an appeal under section 42 was directly made to the Information Commissioner’s Office (“ICO”) on 16 February 2012.

[4]     In the course of the ICO’s pre-hearing investigation, the Governor’s Office introduced new exemptions, namely sections 17(b)(i) (actionable breach of confidence), 20(1)(d) (prejudice to the effective conduct of public affairs), and 23(1) (personal information).

[5]       The investigation was stopped on 22 June 2012, and the matter proceeded to a formal Hearing process before the Information Commissioner (the “Commissioner”). On 22 November 2012 the Commissioner issued Decision 24-006122, in which she found that the provision in section

54(1)(a) did not apply to the responsive records, and that the exemptions in sections 17(b)(i),

20(1)(d) and 23(1) did not apply, and ordered the Governor’s Office to disclose the responsive records.

[6]       The Governor’s Office applied for leave for a judicial review in the Grand Court on 7 January

2013. Leave was granted on 8 February 2013. The Governor’s Office applied for judicial review on 19 February 2013. The application was heard by Acting Justice Sir Alan Moses (“Moses LJ” or “the Judge”) on 30 and 31 October 2013.

[7]       In his Judgment and Order in Governor of the Cayman Islands v Information Commissioner Cause G0003/2013, dated 23 December 2013, the Judge ruled that the responsive records were not exempted from disclosure under section 54(1), as had been claimed by the Governor’s Office. The Judge also found that the case for the exemption in section 20(1)(d) had not been properly laid before the Commissioner, and, as a result, the Commissioner had failed to strike the essential balance in considering the exemption and, if applicable, the public interest. Consequently, the Judge ordered that the Commissioner reconsider the exemption claimed under section 20(1)(d).

[8]       In the course of the judicial review, the Applicant withdrew, but the proceedings continued given the important nature of the issues at stake, and the Judge rejected the notion that the Commissioner’s Decision should be quashed on this basis, saying “The issues are far too important to leave matters without final resolution.”

[9]       In accordance with the Order, on 4 March 2014 the ICO invited the Governor’s Office to make a new submission in writing, “on the sole basis of the application of the exemption in section 20(1)(d) of the FOI Law.” The submission was received by the ICO in early April 2014, and after a period of analysis and investigation, the Hearing reconsideration was closed on 12 May 2014, when a date was set for a new Decision to be rendered by the Acting Information Commissioner on 11 June 2014. On 9 June 2014 the ICO extended the decision deadline under section 43(1) and informed the Governor’s Office that the decision would be due on 11 July 2014.

 

B.   BACKGROUND

[10]     For detailed background information, I refer to the Judgment and Order of Acting Justice Moses in the Judicial Review, as well as to paragraphs 6 through 11 of the Information Commissioner’s Decision 24-00612.

[11]     I draw particular attention to the following concluding passages from the Judgment:

58. … 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(1)(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 dismissal.

59.   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 decision, the Commissioner. She, after all, has the expertise of conditions in the Cayman Islands. Whilst I cannot rule out another appeal, clearly it is better if she strikes the balance 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).

60.   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 order 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. …

61.  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(1)(d).

 

[12]     After hearing further arguments on the Order, the Judge ordered the following:

1. It is declared that the requested documents are not exempted from disclosure by virtue of section 54(1) of the FOI Law;

2. The order of certiorari to quash the Decision is granted;

3. The Decision is remitted back to the Respondent to reconsider whether the requested records are exempt from disclosure by reason of section 20(1)(d) of the FOI law;

4. It is declared that on remission the Respondent is to use such investigative powers pursuant to the FOI Law as she considers necessary and for the purpose of her reconsideration is to receive such written or oral submissions, as the FOI Law permits and, consistent with that Law, she considers necessary.

5. There shall be no order as to costs.

 

  1. ISSUE UNDER REVIEW IN THIS HEARING

[13]     In the third point of his Order of 23 December 2013, Moses LJ explicitly set out the scope of the reconsideration, as follows:

 

3. The Decision is remitted back to the Respondent to reconsider whether the requested records are exempt from disclosure by reason of section 20(1)(d) of the FOI law;

[14]   In accordance with the Order, on 4 March 2014 the ICO Registrar of Hearings invited the Governor’s Office to submit its “views in writing on the sole basis of the application of the exemption in section 20(1)(d) of the FOI Law.”4

[15]     In its submission the Governor’s Office acknowledges the singular focus of the reconsideration, stating (my emphasis):

2.   On 23 December 2013, Acting Justice Sir Alan Moses … ordered that [the Commissioner’s] decision was unlawful, because the Commissioner had failed to consider adequately the exemption in section 20(1)(d) of the Freedom of Information Law 2007 … . He quashed the Commissioner’s decision and remitted the question of disclosure to the Commissioner for further consideration of the application of this exemption.

  1. On 14 February 2012 the Governor’s Office informed [the Applicant] that it would not release the records. The Governor relied on the exemptions in sections 54(1)(a), 17(b)(i), 23(1) and 20(1)(d) of the FOI Law. Of those sections, only section 20(1)(d) is now relied upon.
  2. The Governor now relies on the exemption in section 20(1)(d) of the FOI Law.

[16]     Yet, despite the explicit, singular focus of the current reconsideration the Governor’s Office also asks me to consider additional exemptions which it claims are relevant, namely the exemptions in sections 16(b)(i), 16(b)(ii) and 17((b)(ii). In support, the Governor’s Office states that the Commissioner has discretion to allow a public authority to rely on any exemption even if it did not rely on that exemption when initially refusing to disclose, following APPGER v Information Commissioner and Ministry of Defence [2011] UKUT 153 (AAC).

[17]     I will not consider the new exemptions raised, for the following reasons. Firstly, this reconsideration stems directly from the Judge’s unambiguous Order which is very clear to the effect that my reconsideration should only be concerned with the application of section 20(1)(d).

[18]     Secondly, as the Governor’s Office points out, the relevant date for assessing whether the public authority is under an obligation to disclose a requested record is “the time when the request was first dealt with”, as confirmed by the UK’s Upper Tribunal in Evans v Information Commissioner [2012] UKUT 313 (AAC) 5, which, it says, in this case, was 14 February 2012. I agree that the relevant date in this regard is the time when the request was received and initially dealt with by the Governor’s Office in February 2012. The circumstances briefly described by the Governor’s Office in support of the additional exemptions in sections 16(b)(i), 16(b)(ii) and

17((b)(ii), now being claimed, had at that time not yet materialized.

[19]     Consequently, I will not consider the new exemptions raised by the Governor’s Office, and the sole issue to be determined in this Decision is whether the two responsive records, i.e. the complaint originally filed by Mr. Martin Polaine, subsequently taken over by Mr. Martin Bridger, and the Governor’s response to the complaint, are exempt from disclosure by reason of section

20(1)(d).

[20]     Section 20 specifies:

20. (1) A record is exempt from disclosure if-

(a) its disclosure would, or would be likely to, prejudice the maintenance of the convention of collective responsibility of Ministers;

(b) its disclosure would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation;

(c) it is legal advice given by or on behalf of the Attorney-General;

or

(d) its disclosure would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.

(2) The initial decision regarding-

(a) subsection (1) (a) shall be made not by the information manager but by the Minister concerned;

(b) subsection (1) (b), (c) and (d) shall be made not by the information manager but by the Minister or chief officer concerned.

END

See also iNews Cayman related story published July 11 2014 “Cayman’s ICO overturns Governor’s office decision to withhold “Tempura” records” at:

https://www.ieyenews.com/wordpress/caymans-ico-overturns-governors-office-decision-to-withhold-tempura-records/

 

 

 

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