The Freedom of Information Law (2015 Revision)(“The Foi Law”) and a Certification of a Reference to the Court by the Information Commissioner of a Failure to Comply with an Order Issued Pursuant to Section 45 of the Foi Law for the Disclosure for Inspection of an Official Record

• Jurisdiction: Cayman Islands
• Judge: Chief Justice
• Judgment Date: 26 January 2017
• Court: Grand Court (Cayman Islands)
• Date: 26 January 2017

In the Matter of the Freedom of Information Law (2015 Revison) (“The Foi Law”)

And in the Matter of a Certification of a Reference to the Court by the Information Commissioner of a Failure to Comply with an Order Issued Pursuant to Section 45 of the Foi Law for the Disclosure for Inspection of an Official Record.

Coram:

THE HONOURABLE CHIEF JUSTICE

IN THE GRAND COURT OF THE CAYMAN ISLANDS

DECISION AND REASONS

1 By letter of 6 December 2016, the Acting Information Commissioner (the “Commissioner”) 1 certified to this court 2 the failure of the Office of the Premier to comply with the order of the Commissioner, issued in a letter addressed to the Cabinet Secretary within the Office of the Premier and dated 20 October 2016 (“ the Order”). The Order invoked section 45 of the FOI Law in the following terms 3:

“Therefore, under my authority as Acting Information Commissioner of the Cayman Islands, pursuant to section 45 of the Freedom of Information Law (2015 Revision) I hereby order the production of the Ritch & Conolly Report dealing with immigration matters, [ ‘the Report’] as soon as practicable and without further delay.”

2 The Order, the background to which will be explained in more detail below, relates to appeal No. 013/16 filed under section 42 of the FOI Law by members of the

public 4 for disclosure of the Report, which appeal was accepted by the Commissioner on the 27 September 2016. The Report is the disputed record in that appeal. It was requested by the applicants pursuant to section 7 of the FOI Law 5 but access has been denied by the responsible public authority, the Office of the Premier. This was after the statutory processes of an initial decision on the application taken by that Office's Information Manager and an internal review by the Cabinet Secretary, both of whom had also denied access

3 As the Order expressly acknowledges, the subject-matter of the Report is “immigration matters” and given the abiding public interest in such matters, the applications for disclosure of the Report would not have been surprising. Indeed, the rationalization of government policy on immigration matters has for many years been the subject of public scrutiny and debate. This has occurred amidst demands from the electorate for policies protective of Caymanian interests, juxtaposed against complaints of systemic delay, lack of transparency and procedural irregularities in the resolution of applications by non-Caymanians, especially those for permanent residence. Successive governments have been confronted by this sensitive and difficult problem but a final and generally acceptable resolution has proven to be illusive, as may be manifest from the near perennial amendments to the Immigration Law.

4 In particular, two complaints by applicants for permanent residence came to be of moment in relation to the present matter. These were applications which had been successfully taken on appeal to this Court against decisions of the Immigration Appeals Tribunal 6 and it was the publicly declared response of the Government to the criticisms in the judgment delivered on those appeals, among other considerations, that led to the commissioning of the Report 7. The law firm of Ritch & Conolly were commissioned to provide the Report and, as will be more fully explained below, it is the position of the Premier as Minister for Home Affairs, Health and Culture (including immigration matters), that the Report constitutes privileged legal advice given by or on behalf of the Attorney General, it having been commissioned from Ritch & Conolly by the Attorney General on behalf of his Ministry. The Premier has certified that the Report is, therefore, exempt from disclosure under certain provisions of the FOI Law, and this is the central proposition to be examined below 8.

5 The aforementioned appeal of the applicants for disclosure having been filed under section 42 of the FOI Law, the Commissioner has the power to conduct a full investigation pursuant to section 45, which is expressed in these terms:

“45 (1) in coming to a decision pursuant to sections 43 or 44 9, the Commissioner shall have the power to conduct a full investigation, including by issuing orders requiring the production of evidence and compelling witnesses to testify; in the exercise of this power he may call for and inspect an exempt record, so however, that, where he does so, he shall take such steps as are necessary or expedient to ensure that the record is inspected only by members of staff of the Commissioner acting in relation to that matter.

(2) The Commissioner may, during an investigation pursuant to sub-section (1), examine any record to which this Law applies, and no such record may be withheld from the Commissioner on any grounds unless the Governor, under his hand, certifies that the examination of such record would not be in the public interest.

(3) A certificate given by the Governor under subsection (2) shall not be subject to challenge in judicial or quasi-judicial proceedings of any kind.” 10

6 By section 47, an applicant or a respondent public authority, is allowed 45 days within which to appeal to the Grand Court by way of judicial review against a decision or order made by the Commissioner under section 45(1) 11.

7 Save for that right of appeal and the qualification imposed upon it by the Governor's power under subsection 45(2) to certify an exemption in the public interest, the section 45 power is expressed in wide and seemingly unfettered terms. It enables the Commissioner, among other things, to require the production of a public record,

including even an exempt record, for examination in furtherance of his investigations. It is the power on which he relied in making the Order and in certifying under section 48 to this Court, the Premier's failure to comply, seeking enforcement of the Order

8 The section 45(2) power is not however, one which can be construed and applied properly in isolation from other operative and relevant provisions of the FOI Law.

9 Before turning to those other provisions, I return to the factual context as more fully explained by the Commissioner's letter of reference to this Court of 6th December 2016:

“In trying to investigate this appeal, as further explained in the (Order) itself, the (Office of the Information Commissioner) tried for several weeks to obtain a copy of the Report in dispute, so that a full investigation may be undertaken in pursuance of a fair and impartial decision on the application of the exemptions claimed. However, we were eventually informed by the Cabinet Secretary that he was not willing to provide the record to us. This led the (Commissioner) to issue the (Order) on 20 October 2016.”

10 It is to be noted that the Commissioner's stated purpose in ordering the production of the Report was to undertake “a full investigation… in pursuance of a fair and impartial decision on the application of the exemptions claimed.”

11 It must however also be recognized, that the Commissioner's ultimate purpose in calling for the Report, must be to decide whether or not the Report should be released to the applicants, in the event he determines that the exemptions claimed are inapplicable and decides the appeals in their favour. As the opening phrase of section 45 (1) explains, the powers of investigation and inspection are to be exercised by the Commissioner “In coming to a decision (on an appeal) pursuant to section 43 or 44”.

12 It must also be recognized in this context, that while the Commissioner's stated purpose is one of inspection in verification of the exemptions claimed, the Premier's certificate may be seen as stating the obvious in this regard, especially coming against the background of the well-known circumstances described above, under which the Report was commissioned. Indeed, the factual context is such that there is no basis for a concern about and no suggestion of bad faith, on the part of the Premier's Office in the assertion of the claim to legal professional privilege.

13 And so, unless regarded as aimed at the ultimate fulfillment of his obligations under the FOI Law for the resolution of the appeals, the insistence by the Commissioner upon the production of the Report for his inspection may be seen as a rather strict invocation of his powers of investigation under the FOI Law, in this case.

14 In the typical case, an uncompromising investigative stance may well be a reasonable position for the Commissioner to take as the factual context of a claim for exemption may be unclear. As shown above, section 45 suggests that in the absence of a certificate from the Governor, it is the Commissioner who decides whether or not a record for which an exemption is claimed should indeed be treated as exempt from disclosure.

15 And this view of section 45 may at first be seen as bolstered by section 26 which, in recognizing that although records may be exempt from disclosure on various grounds identified in other listed provisions of the FOI Law 12, states that:

“26 (1) Notwithstanding that a matter falls within section 18, 19(1)(a), 20(1)(b), (c) and (d), 21, 22, 23 and 24, access shall be granted if such access would nevertheless be in the public interest.

(2) Public interest shall be defined in regulations made under this Law 13”.

16 Of those provisions of the FOI Law listed above in section 26(1), the one of particular relevance here and one of two provisions relied upon by the Premier in his certificate of exemption, is subsection 20(1)(c) which reads:

“20 (1) A record is exempt from disclosure if —

• (a) …

• (b)…

• (c) it is legal advice given by or on behalf of the Attorney General or the Director of Public Prosecutions.

• (d) …”

17 Subsection 20(2) goes on to provide, also of relevance here, that the initial decision regarding whether a record is exempt from disclosure under...