Governor v Information Commissioner

• Jurisdiction: Cayman Islands
• Judge: (Owen, Ag. J.)
• Judgment Date: 16 March 2015
• Court: Grand Court (Cayman Islands)
• Date: 16 March 2015

Grand Court, Civil Division

(Owen, Ag. J.)

GOVERNOR

and

INFORMATION COMMISSIONER

I. Paget-Brown, Q.C., Ms. A.-M. Rambarran, Crown Counsel, and Ms. D. Lewis, Crown Counsel for the applicant;

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

Cases cited:

(1) APPGER v. Information Commr., [2011] UKUT 153 (AAC), referred to.

(2) Anwar v. Home Secy., [2011] 1 W.L.R. 2552; [2011] I.N.L.R. 111; [2010] EWCA Civ 1275, referred to.

(3) Att. Gen. v. Bridger, 2013 (2) CILR N[9], referred to.

(4) Birkett v. DEFRA, [2012] P.T.S.R. 1299; [2012] 2 C.M.L.R. 5; [2012] Env. L.R. 24; [2011] EWCA Civ 1606, referred to.

(5) DEFRA v. Information Commr., [2011] UKUT 39 (AAC), referred to.

(6) Evans v. Information Commr., [2012] UKUT 313 (AAC), referred to.

(7) Goodridge v. Chief Const. (Hants.), [1999] 1 W.L.R. 1558; [1999] 1 All E.R. 896, applied.

(8) Henderson v. HendersonENR(1843), 3 Hare 100; 67 E.R. 313; [1843–60] All E.R. Rep. 378, applied.

(9) Information Commr. v. Home Office, [2011] UKUT 17 (AAC), referred to.

(10) Marke v. Victoria Police, [2007] VSC 522, followed.

(11) Public Safety Dept. v. Freedom of Information Commn.(2007), 103 Conn. App. 571; 930 A.2d 739, not followed.

(12) R. (Hill) v. Institute of Chartered Accountants, [2014] 1 W.L.R. 86; [2013] EWCA Civ 555, referred to.

(13) R. (Nirula) v. First-Tier Tribunal, [2013] 1 W.L.R. 1090; [2013] I.N.L.R. 456; [2012] EWCA Civ 1436, referred to.

(14) Unified School Dist. No. 259 v. Kansas Disability Rights Center, (2007), 491 F.3d 1143, not followed.

(15) Watt (formerly Carter) v. Ahsan, [2008] 1 A.C. 696; [2008] 2 W.L.R. 17; [2008] 1 All E.R. 869; [2008] I.C.R. 82; [2008] I.R.L.R. 243; [2007] UKHL 51, applied.

Legislation construed:

Freedom of Information Law 2007, s.16: The relevant terms of this section are set out at para. 9.

s.17: ‘An official record is exempt from disclosure if . . . (b) the disclosure thereof would . . . (ii) be in contempt of court . . .’

s.20: ‘(1) A record is exempt from disclosure if . . . (d) its disclosure would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs.’

s.27: The relevant terms of this section are set out at para. 30.

s.46: The relevant terms of this section are set out at para. 32.

s.47: The relevant terms of this section are set out at para. 22.

Grand Court Rules 1995 (Revised), O.53, r.3: The relevant terms of this rule are set out at para. 24.

Freedom of Information-exemptions-records relating to ongoing investigation-Information Commissioner to consider whether disclosure of documents relied on in criminal investigation prejudicial to right to fair trial and as such exempt under Freedom of Information Law 2007, s.16(b) from disclosure prior to trial-redaction of sensitive information may strike balance between freedom of information and prejudice to investigation or fair trial

Freedom of Information-exemptions-arising after request for information-Information Commissioner to consider exemptions arising after date of freedom of information request, e.g. if commencement of criminal investigation after making of request indicates that documents to be used in investigation exempt from publication-not required solely to consider exemptions applicable at date of request

A member of the public requested the disclosure of certain documents by 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 senior investigating officer, B, made a number of complaints regarding three members of the Cayman judiciary. The Governor received legal advice from A, who produced an extensive report on the matter. As a result, the complaints were dismissed, though the reasons for dismissing them were not released to the public.

Following the dismissal of the complaints, E, a journalist, requested the Governor”s office to disclose the contents of the complaint, and the report containing the reasons for dismissing it, under the Freedom of Information Law 2007 (‘the Law’).

The Governor refused the request on the ground that the documents contained defamatory material, and as such were exempt from disclosure by s.54(1)(a) of the Freedom of Information Law 2007. The Information Commissioner, however, disagreed with the Governor”s decision and ordered that the complaint and the Governor”s response should be disclosed as requested.

The Governor appealed against the Commissioner”s decision by way of judicial review. Before the appeal was considered, E withdrew his freedom of information request, but the court directed that proceedings should continue given the public interest in the complaints and the Governor”s response. The Governor made no objection to this order.

The Governor submitted that the records were exempt from disclosure under s.54 of the Law as they were defamatory and, in the alternative, that there was no public interest in disclosure as the documents would negatively affect the public”s confidence in the judiciary. The Commissioner submitted that s.54 did not exempt the records from disclosure, and that disclosure was in the public interest as the secrecy surrounding the operation was harming the reputation of the Cayman Islands and the judiciary.

The Grand Court (Moses, Ag. J.) held that s.54 provided no exemption from publication for documents containing defamatory material. However, it found that the Commissioner had not adequately considered whether disclosure would hinder the effective conduct of public affairs (rendering the documents exempt from publication by virtue of s.20(1)(d) of the Law) and, therefore, the Commissioner”s decision was quashed and the question of the application of s.20(1)(d) was remitted for further consideration. The proceedings in the Grand Court are reported at 2013 (2) CILR 421.

In reconsidering whether the records should be disclosed, the Commissioner declined an invitation to meet the Commissioner of Police-who had given evidence supporting the Governor”s contention that ongoing criminal investigations might be hampered-on the basis that it was inappropriate to meet with a party during the consideration of a freedom of information request, despite the Governor and the Commissioner now being the sole parties contesting the proceedings after E”s withdrawal.

On being invited to make written submissions to the Commissioner, the Governor submitted that s.20(1)(d) required exemption from publication. In addition, he submitted that ss. 16 and 17 of the Law also required exemption from disclosure as the records contained information relating to an ongoing criminal investigation, the Governor”s response attracted legal advice privilege as it was almost entirely based on A”s report, and publication risked breaching an order made by Williams, J. (in proceedings noted at 2013 (2) CILR N [9]) preventing B from disseminating specified documents in defending a charge of misfeasance in public office.

The Commissioner concluded that the records should be disclosed. He refused to consider the application of ss. 16 and 17 as he deemed it inappropriate to consider circumstances which arose subsequent to the

making of the freedom of information request, such as the proceedings against B, and rejected the Governor”s arguments concerning s.20(1)(d) and the public interest.

The Governor applied for judicial review of the Commissioner”s decision by way of an appeal under s.47 of the Law. He submitted that the Commissioner (a) had no jurisdiction to consider the freedom of information request as E, the initial applicant, had withdrawn his request; (b) had erred in law by refusing to consider factual matters which arose subsequent to the date of the freedom of information request; (c) was misguided in ignoring the fact that disclosure was likely to prejudice an ongoing criminal investigation and be in contempt of the order made by Williams, J.; and (d) had overlooked the fact that the Governor”s report was subject to legal advice privilege.

In reply, the Commissioner submitted that (a) he had jurisdiction as s.44 of the Law imposed a duty on him to ensure that public authorities complied with the Law, and, in any event, it was an abuse of process to raise a jurisdictional issue at such a late stage in the proceedings; (b) the legislative scheme required the Commissioner to consider an application on the basis of the facts as they stood at the time of the making of a request and, as the Grand Court”s order had been to reconsider the applicability of s.20(1)(d), the Commissioner was precluded from considering ss. 16 and 17; and (c) the Governor had failed to demonstrate that the documents to be disclosed were materially connected to the criminal investigations against B or that publication would adversely affect the conduct of those investigations.

Held, allowing the appeal:

(1) The records were prima facie exempt from publication under s.16(b) of the Law as they related to law enforcement, and the decision that they should be published would therefore be quashed pending reconsideration by the Commissioner. The publication of the records would have the potential to interfere with an ongoing criminal investigation and might prejudice a fair trial as they contained information which would be relied on in investigating the allegations against B. The Commissioner ought to have considered whether the redaction of sensitive information might have struck a balance between the principles of freedom of information and prejudice to the criminal investigation. Moreover, a more comprehensive investigation could have been carried out by having discussions with the Commissioner of Police, as there was no risk of improper bias following E”s retraction of his complaint (paras...