Governor v Information Commissioner

• Jurisdiction: Cayman Islands
• Judge: (Moses, Ag. J.)
• Judgment Date: 23 December 2013
• Court: Grand Court (Cayman Islands)
• Date: 23 December 2013

Grand Court, Civil Division

(Moses, Ag. J.)

GOVERNOR

and

INFORMATION COMMISSIONER

C. Bourne and Ms. C. Wilkins for the applicant;

Ms. M. Carss-Frisk, Q.C., Ms. D. Owen and K. Broadhurst for the respondent.

Cases cited:

(1) Ahnee v. DPP, [1999] 2 A.C. 294; [1999] 2 W.L.R. 1305, referred to.

(2) Cole v. Information Commr., UK First-tier Tribunal (Information Rights), EA/2013/0042 & 0043, October 30th, 2014, unreported, referred to.

(3) Ladd v. Marshall, [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; [1954] EWCA Civ 1, referred to.

(4) McIntyre v. Information Commr., UK Information Tribunal, EA/2007/0061, February 4th, 2008, unreported, considered.

(5) National Roads & Matrices Assn. Ltd. v. Snodgrass, [2002] NSWSC 811, referred to.

(6) Sittampalam v. Information Commr., UK First-tier Tribunal (Information Rights), EA/2011/0277, October 5th, 2012, considered.

(7) Stevens v. Cuckfield Rural District Council, [1960] 2 Q.B. 373; [1960] 3 W.L.R. 248; [1960] 2 All E.R. 716, considered.

Legislation construed:

Freedom of Information Law 2007, s.2: The relevant terms of this section are set out at para. 17.

s.6(1): The relevant terms of this sub-section are set out at para. 17.

s.7(3)(c): The relevant terms of this paragraph are set out at para. 17.

s.17(b)(i): The relevant terms of this paragraph are set out at para. 17.

s.20(1)(d): The relevant terms of this paragraph are set out at para. 17.

s.47: The relevant terms of this section are set out at para. 24.

s.54: The relevant terms of this section are set out at para. 13.

Freedom of Information-exemptions-defamatory material-documents containing defamatory material not exempt under Freedom of Information Law 2007, s.54(1)

Freedom of Information-exemptions-prejudice to effective conduct of public affairs-Information Commissioner to decide whether documents containing allegations against judges exempt from disclosure under Freedom of Information Law 2007, s.20(1)(d) as disclosure would present real and significant risk of prejudice to effective conduct of public affairs-court should not itself decide whether Governor satisfied the burden to show real and significant risk of prejudice when denying request for disclosure-should be remitted to Commissioner-Governor”s decision to refuse disclosure not merely quashed as too important to leave unresolved

Freedom of Information-judicial review-Information Commissioner-judicial review of decision of Information Commissioner under Freedom of Information Law 2007, s.47(1) not merely ordinary judicial review of decision-therefore open to court to quash decisions of Commissioner with or without order for reconsideration, not just allow or dismiss appeal-court entitled to disagree with Commissioner”s decision if satisfied wrong and not confined to determining only whether Commissioner entitled to come to that decision-Commissioner should adequately consider where balance lies between public interest in maintaining effective conduct of public affairs and need for transparency

A member of the public requested disclosure of certain documents from the Governor”s office under the Freedom of Information Law 2007.

Following allegations of corruption in the Royal Cayman Islands Police Service, a team from the Metropolitan Police in London was brought to the Islands to conduct an investigation known as ‘Operation Tempura.’

The operation led to a number of arrests being made, including that of Mr. Justice Henderson. After he had been cleared of allegations of misconduct in public office, and his arrest found unlawful, Mr. Justice Henderson made a complaint against Mr. Martin Polaine, the legal adviser to Operation Tempura, as result of which Mr. Polaine was disbarred in the

United Kingdom. Mr. Polaine, following his disbarment, himself complained to the Governor”s office about the conduct of three members of the Cayman judiciary. He eventually abandoned the complaint, but it was taken up by Mr. Bridger, the former senior investigating officer of Operation Tempura. The Governor received advice from Mr. Aina, Q.C., who produced an extensive report on the matter. As a result of that advice, all aspects of the complaint were dismissed. The complaint and the reasons for dismissing it were not released to the public. Mr. Bridger was provided with written reasons for the decision, but signed an agreement undertaking not to share them with anyone other than his lawyer.

The complaint was referred to in both the Cayman and UK press. Mr. John Evans, a former journalist involved in Operation Tempura, requested that the Governor”s office disclose the contents of the complaint, and the report containing the reasons given for dismissing it, under the Freedom of Information Law 2007.

The Governor refused the request on the ground that it contained defamatory material, and as such was exempt from disclosure pursuant to s.54(1)(a) of the Freedom of Information Law 2007. The Information Commissioner, however, overturned the Governor”s decision and ordered that the complaint, and the Governor”s response setting out the reasons for his dismissal of the complaint, should be disclosed as requested.

The Governor sought judicial review of the decision of the Information Commissioner in the present proceedings, submitting that the Freedom of Information Law 2007, s.54 exempted from disclosure documents containing defamatory material, and the complaint and the reasons for dismissing it indisputably contained such material and so were exempt. The reference to not ‘authorizing’ disclosure in that section was synonymous with not ‘requiring’ as it would be inconsistent for the Law to require disclosure of material whilst not authorizing its disclosure. In the alternative, the Governor submitted that the documents were exempt from the requirement of disclosure under s.20(1)(d) as they would have negatively affected the public”s confidence in the judiciary, thereby prejudicing the effective conduct of public affairs. The Commissioner had failed to have adequate regard to the need to safeguard the independence of the judiciary; the sensitivity of complaints against the judiciary; and the public interest in preserving the confidentiality of such complaints. Further, appeal by way of judicial review as allowed by the Law must mean more than ordinary judicial review or it would otherwise have been unnecessary to make special provision for it.

The Commissioner submitted that on its true construction, s.54 did not exempt any records whatsoever from disclosure and that, in any event, it was in the public interest to disclose the documents in question as, inter alia, the secrecy surrounding Operation Tempura was harming the reputation of the Cayman Islands, and disclosure would promote the accountability of the Governor and preserve the reputation of the judiciary. The Commissioner further submitted that the threshold required to exempt material for the reason that its disclosure might prejudice the effective

conduct of public affairs was exceptionally high, and the factors in favour of withholding the report did not outweigh the public interest in disclosing it. It would be surprising for the court to determine the appeal by anything other than an ordinary judicial review, given that it had been launched as a traditional judicial review.

Held, allowing the appeal in part:

(1) Section 54(1) of the Freedom of Information Law 2007 provided no exemption for documents containing defamatory material from the requirement for disclosure under that Law.

(i) The Law gave the public the right to access-and public authorities the duty to disclose-all records, save those which were exempt. Defamatory material, however, was not included in the definition of ‘exempt’ records in the Law.

(ii) The marginal note to s.54 explained its purpose clearly and accurately: it was not to be construed as authorizing (as distinct from requiring) the disclosure of defamatory material, so that the public authority which was required to disclose the defamatory material would not be liable for authorizing its publication.

(iii) Section 54(1) made reference to both defamatory material and material the disclosure of which would constitute an actionable breach of confidence. If s.54(1) did intend to impose an exception to the requirement of disclosure in relation to these sorts of documents, then it unnecessarily included breaches of confidence together with defamation in s.54(1), as documents containing material the disclosure of which would constitute a breach of confidence were already exempted from disclosure earlier in the Law.

(iv) It would have been illogical to provide a defence in s.54(2) and s.53(3) for the disclosure of documents containing defamatory material in accordance with the Law, or even under the bona fide but mistaken belief that such disclosure was required by the Law, if s.54(1), correctly understood, categorically exempted all such documents from being disclosed in the first place.

(v) This construction of the section was consistent with the objectives of the Law and cl. 22 of the Constitution (paras. 19–23).

(2) It was therefore unnecessary to consider whether the purported exception in s.54(1) was within the objectives of the Law, or s.22 of the Constitution. Had the Governor”s construction of that section been correct, however, the submissions of the Commissioner attempting to limit the scope of the exemption would have failed (para. 23).

(3) Rather than merely allowing or dismissing the appeal, it was open to the court to quash the decision with or without ordering its reconsideration. The court was entitled to disagree with the decision of the Commissioner if it was satisfied that her decision was wrong; its approach was not

confined to the traditional judicial review approach of determining only whether or not she was entitled to come to the decision she did. An appeal against a decision of the...