October 21, 2020

Tempura FOI matter continues – Governor to submit further arguments

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ICOFrom Information Commissioner’s Office

While the judgment in the recently heard judicial review proceedings between the Governor and the Information Commissioner has not yet been released, the parties are now permitted to reveal the outcome of the Hearing, which is that the Governor is to submit further arguments, and the matter is to be reconsidered by the Commissioner.

The judgment of the Right Honourable Lord Justice Moses 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. This was the central issue for the Hearing and was the conclusion reached by the Information Commissioner in her decision that was the subject of the review.

Jennifer Dilbert, the Information Commissioner, said “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. This underlines the intent of the Law which is to provide transparency and accountability even where the content of records might be controversial.”

Having ruled out the issue of defamation, which was the major focus of the parties, the Judge 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 that 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.

We await the finalization of the detailed written judgment which will be made public.

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