November 23, 2020

The Editor Speaks: Can ICO hand over confidential submissions to third parties?

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Colin WilsonwebWith Jennifer Dilbert, the Cayman Islands Information Commissioner (ICO) making her latest ruling in favour of the Governor’s Office in the matter of the non release of the 2012/13 Budget correspondence, it shows even more surprise when she ruled against the Governor in allowing the release of the Tempura debacle papers.

Not that we will ever see the Tempura documents with the weight of the Governor’s office and Cayman’s and the UK’s top lawyers at Governor Taylor’s disposal now that he has chosen to fight the ICO’s decision.

All we will receive after all this has run its course is another costly bill.

It is OK to employ lawyers costing $1,000 an hour but it is not OK to pay the expenses of one of the persons who was at the heart of Tempura.

I am speaking of the journalist, John Evans, who was one of the persons who applied to the ICO for the Tempura papers release. After the Governor applied for and obtained a Judicial Review to challenge Dilbert’s decision the judge who made the ruling, Lord Justice Moses, gave instructions that Evans was to be included in the judicial review process as a ‘person directly affected’.

One of the lawyers acting for the Governor’s Office sent Evans a host of papers but strangely the ICO’s own lawyers have not answered Evans request that he receive monetary compensation for attending the hearing.

After giving the lawyers a timeline to respond and not hearing from them Evans has sent Tom Hines, Staff Officer to HE Duncan Taylor, a letter stating he (Evans) has now withdrawn his FOI Request 46982 to secure release of the Martin Polaine/Martin Bridger complaint and the report by Benjamin Aina (Tempura).

Evans says he is now satisfied “that no useful purpose will be served by wasting what is likely to be a substantial amount of public money pursuing this any further.”

He further makes the observation that:

“I make no secret of the fact that this decision has been prompted by moves that have effectively shut me out of the judicial review but I am also not convinced that the case presented by the Information Commissioner is sufficiently robust to secure release of the requested documents. Whilst the arguments relating to possible conflicts between the FOI laws and the Constitution may be valid I believe that they do not, on the own, create grounds for a successful challenge to the case presented by the Governor’s Office to the Grand Court for overturning the appeal decision.”

Evans says he senses a complete unwillingness on the part of the ICO to comply with the Lord Justice’s instructions for his inclusion in the review and “although they are happy to use my application and the subsequent appeal as grounds to challenge the FOI laws, any further involvement on my part is an unwelcome distraction.”

He also says, “In excluding me from the proceedings the Information Commissioner has clearly also ruled out two further lines of argument, which I wanted to pursue. These relate to whether the inquiry into the complaints was conducted lawfully in the first place and the questionable legality of the Governor’s later actions in declaring the complaints defamatory but then failing, as he was required to under both Cayman Islands’ law and ECHR, to initiate any action over this. I am already on record as stating that I believe the decision to refuse to release these documents was actually prompted by fears at the FCO that the contents would undermine the credibility of several senior civil servants, including Colin Roberts who was OT Director at the time and is now Governor Designate of the Falkland Islands, with the defamation argument merely being used as a convenient smokescreen. However, the Information Commissioner has decided to concentrate on the Section 54 arguments, which I believe are insufficient to secure release of the documents.

“At this stage I am simply no longer prepared to allow my name to be associated with a process that will involve the employment of two top-end laws firms at considerable public expense in what I believe is ultimately going to be a complete waste of time and money.”

Finally Evans makes the case which prompted my question (“Can ICO hand over confidential submissions to third parties?) at the heading of my email by saying, “with the withdrawal of the FOI application I am invoking copyright protection on all documents prepared and submitted to the ICO so from now on unauthorised reproduction, distribution, publication or any other use of these documents without my specific authority is prohibited.”

Evans has told me he has taken legal advice and he was told unless he was made to sign a release, which he wasn’t and did not do, he retains author’s copyright on every document submitted to the ICO in the Cayman Islands. He said, “They shouldn’t even be using my submissions in evidence without obtaining specific authorisation (which they didn’t).”

Surely the original applicant MUST BE an integral part of any judicial review and must be in agreement with the way it is conducted?

That would seem to make sense……

With Evans withdrawal and the ICO not seemingly to care, is it just my suspicious mind that the ICO are now just going through the motions knowing full well they can’t possibly win?



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