(1) Ernst & Young Ltd (2) Maplesfs Ltd (3) KPMG (4) Butterfield Bank (Cayman) Ltd Plaintiffs v The Information Manager of the Department of Immigration of the Cayman Islands Government (“the FOI Officer”) Defendant (1) Ernst & Young Ltd (2) Maplesfs Ltd (3) KPMG (4) Butterfield Bank (Cayman) Ltd Plaintiffs v (1) Kerry Tibbetts (2) Persons Unknown Defendants
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Anthony Smellie |
| Judgment Date | 12 February 2015 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: G15 0F 2015 |
| Date | 12 February 2015 |
In Chambers
The Hon. Anthony Smellie
On 30 th January 2015:
Mr. Mac Imrie, Ms. Lara Kuehl and Ms. Krista-Lynn Wight of Maples and Calder for the Plaintiffs
On the 6 th February 2015:
Mr. Mac Imrie, Ms. Lara Kuehl and Ms. Krista-Lynn Wight of Maples and Calder for the Applicants
(Also present on 6 th February 2015: Mr. Andrew Bolton of Appleby and Mr. David Legge of Pinnacle Publishing and — deponent of an affidavit considered on 30 th January 2015) – as observers with the consent of the Plaintiffs.)
General disclosure of personal and commercially sensitive information by FOI Officer-whether leave should be given for judicial review of the decision to disclose– whether injunction against further disclosure by the FOI Officer should be granted– whether injunction should be extended against persons unknown who may have come into possession of the information and further, contra mundum, to restrain anyone in the world at large who may come into possession of the information from further disclosure of it– whether rules of court allow writ to be issued against unnamed defendants.
On 30 th January 2015, upon an ex parte application by the Plaintiffs in the first of these two causes, I granted them leave to bring an application for judicial review of the decision of the defendant in that Cause (the ‘FOI Officer’). By that decision, the FOI Officer had disclosed to the Cayman Compass, a local newspaper, a Microsoft spread-sheet containing personal and commercially sensitive information about all work permit holders in the Cayman Islands (‘the Spread–sheet’).
The Spread-sheet comprised the following kind of information about those 21,000 persons:
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(1) The names of the employers
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(2) Personal information about the employees, not including their individual names but including:
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(i) their individual salaries;
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(ii) their nationalities;
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(iii) their job titles;
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(iv) their start dates.
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Injunctive orders were also granted to restrain the FOI Officer from publishing and/or disclosing to any person or entity external to the Department of Immigration the information in the Spread-sheet until further order and requiring the FOI Officer to disclose to the Plaintiffs and to the Court, the identities of any and all persons to whom the Spread-sheet had been disclosed, or any part of the information therein contained.
The fact of the disclosure to the Cayman Compass had been brought to the attention of the Plaintiffs by none other than the publisher of the newspaper himself, Mr. David Legge.
In his affidavit filed in support of the Plaintiffs” application, Mr. Legge explains that on 19 lh January 2015, a reporter employed by the Cayman Compass requested information about Cayman Islands work permit holders from the FOI Officer under the Freedom of Infonnation Law 2007 Revision (the ‘FOI Law’).
In response, on 22 nd January 2015, the FOI Officer provided the Cayman Compass with the Spread-sheet.
Mr. Legge explains that the Cayman Compass has not published and does not intend to publish any information from the Spread-sheet that would identify or aid anyone in identifying companies, individuals or employees. On the basis of that assurance, the Cayman Compass has itself not been joined by the Plaintiffs as a party to these proceedings and no order has been sought as against it.
The Plaintiffs application was also supported by a number of affidavits sworn by Chief Executive Officers and Senior Partners of a number of the employer entities whose information is contained in and disclosed in the Spread-sheet.
These officers spoke in unison in their affidavits, to the prejudice that disclosure of the information would cause to the commercial interests of their respective businesses. The affidavit of Mr. Layman Daniel Scott, the Senior Partner of Ernst & Young is in terms, the same in these regards as the affidavits sworn to on behalf of all the Plaintiffs:
‘ 6.1 In common with the position in most companies, employees of Ernst & Young do not generally know what salaries other employees of Ernst & Young are paid. If employees knew what every work permit holding employee was paid, this could lead to workplace disputes, bad morale and complaints. It is also likely to put Ernst & Young at a disadvantage when hiring any future employees (whether or not they would be work permit holders) as prospective employees would be likely to insist upon receiving the highest level of salary available for employees holding the same job description, without regard to commercial factors and individual merits.
6.2 If competitors and clients knew the number of work permit holders with a particular job description or knew how much the salaries of work permit holders was costing Ernst & Young, they would be able to ascertain the likely scale of Ernst & Young's operations in the Cayman Islands and the cost of such operations. Such detailed knowledge of Ernst & Young's operations is likely to damage its competitive advantage, given that such information would not normally be publicly available.’
Mr. Scott, again in unison with the other officers, also explained the sensitivity of the information as to the personal information of employees:
7. In addition to its own commercial interests, Ernst & Young is concerned about the rights of its employees to have their personal information kept private. As a responsible employer, Ernst & Young considers that it is under a duty to take steps to ensure that the personal information of its employees is protected from unauthorised disclosure. Ernst & Young wishes to safeguard its employees, some of whom are likely to be identifiable from the information in the Spreadsheet, from facing a situation in which the exact level of their salaries is publicly available information (known by their acquaintances, family, professional rivals, future prospective employers etc.).
8. Neither Ernst & Young nor its employees were notified by the Defendant either before or after the Spreadsheet was disclosed to the Cayman Compass and no consent was sought to the same.’
The sensitivity of the information was underscored by its obvious currency: start dates for employees included in the Spread-sheet are as recent as 22 January 2015.
In presenting their applications for judicial review, the Plaintiffs emphasised the apparent breach of the FOI Law itself which is involved in the disclosure of the information contained in the Spread-sheet.
As Mr. Imrie submitted, a fundamental point is that the information is not disclosable under the FOI Law, if it is clearly personal information.
The same is true if the information is clearly commercially sensitive information. Sections 21 and 23 of the FOI Law apply in clear terms:
‘ 21(1) Subject to subsection (2), a record is exempt from disclosure if—
(a) Its disclosure would reveal–
(i) Trade secrets;
(ii) Any other information of a commercial value, which value would be, or could reasonably be expected to be destroyed or diminished if the information were disclosed.
(b) It contains information (other than that referred to in paragraph (a)) concerning the commercial interests of any person or organisation (including a public authority) and the disclosure of that information would prejudice those interests.
(2) Subsection (1) shall not apply where the applicant for access is the person or organisation referred to in that subsection or a person acting on behalf of that person or organisation.
23(1) Subject to the provisions of this section, a public authority shall not grant access to a record if it would involve the unreasonable disclosure of personal information of any person, whether living or dead.
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(3) Records relating to personal information shall be exempt without limitation as to time.’
The definition of ‘personal information’ means information or an opinion (including information forming part of a data base) whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, including but not limited to:
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(a) …
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(b) The individual's race, national or ethnic origin, …
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(g) information about the individual's … financial, employment or criminal history…. (emphases applied).’
I was satisfied, having regard especially to the words in emphasis above, that for the purposes of deciding whether or not to grant leave to apply for judicial review of the FOI officer's decision to disclose the Spread-sheet, that it very arguably contains personal information within the meaning of the FOI Law and Regulations and as such, its disclosure is in prima facie breach of the FOI law.
However, the prohibition against disclosure of personal information is not absolute, as section 23(4) provides that the extent to which third party rights are to be protected shall be set out in the Regulations made under the Law. Regulation 11 provides that where an information manager intends to give access to a record which he believes contains personal information, he shall, within fourteen calendar days of receipt of the application, send the third party written notice of the application for access. Although...
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