The Freedom of Information Law (2015 Revision)
| Jurisdiction | Cayman Islands |
| Judge | (Smellie, C.J.) |
| Judgment Date | 26 January 2017 |
| Court | Grand Court (Cayman Islands) |
| Date | 26 January 2017 |
(Smellie, C.J.)
(1) A. M. & S. Europe Ltd. v. Commission of the European Communities, [1983] Q.B. 878; [1983] 3 W.L.R. 17; [1983] 1 All E.R. 705; [1982] 2 C.M.L.R. 264; [1982] F.S.R. 474; [1982] E.C.R. 1575, referred to.
(2) Att. Gen. v. Bridger, 2013 (2) CILR N [9], referred to.
(3) Att. Gen. v. Clough, [1963] 1 Q.B. 773; [1963] 2 W.L.R. 343; [1963] 1 All E.R. 420, considered.
(4) Att. Gen. v. Mulholland, [1963] 2 Q.B. 477; [1963] 2 W.L.R. 658; [1963] 1 All E.R. 767, considered.
(5) Balabel v. Air India, [1988] Ch. 317; [1988] 2 W.L.R. 1036; [1988] 2 All E.R. 246, considered. (6) Foxley v. United Kingdom (2000), 31 E.H.R.R. 637; 8 BHRC 571, referred to.
(7) Governor v. Information Commr., 2015 (1) CILR 258, referred to.
(8) Hutchinson-Green, In re, 2015 (2) CILR 75, referred to.
(9) Inland Rev. Commr. v. West-Walker, [1954] NZLR 191, referred to.
(10) Minter v. Priest, [1930] A.C. 558; [1929] 1 K.B. 655; [1930] All E.R. Rep. 431; (1930), 46 T.L.R. 301, referred to.
(11) Parry-Jones v. Law Socy., [1969] 1 Ch. 1; [1968] 2 W.L.R. 397; [1968] 1 All E.R. 177, distinguished.
(12) Porter-Shirley v. Whittaker, 2016 (1) CILR 140, applied.
(13) R. v. Home Secy., ex p. Simms, [2000] 2 A.C. 115; [1999] 3 W.L.R. 328; [1999] 3 All E.R. 400; [1999] 1 Prison L.R. 82; [1997] E.M.L.R. 689; [1999] 4 LRC 518; (1999), 7 BHRC 411, applied.
(14) R. (Evans) v. Att. Gen., [2014] EWCA Civ 254; [2014] Q.B. 855; [2014] 2 W.L.R. 1334; [2014] 3 All E.R. 682; [2014] 3 C.M.L.R. 12; [2014] Env. L.R. 26; [2014] H.R.L.R. 12, referred to.
(15) R. (Morgan Grenfell & Co. Ltd.) v. Special Commr. of Income Tax, [2002] UKHL 21; [2003] 1 A.C. 563; [2002] 2 W.L.R. 1299; [2002] 3 All E.R. 1; [2002] STC 786; [2002] H.R.L.R. 42, applied.
(16) Three Rivers D.C. v. Bank of England (No. 6), [2004] UKHL 48; [2005] 1 A.C. 610; [2004] 3 W.L.R. 1274; [2005] 4 All E.R. 948, referred to.
(17) WX v. YZ, 2002 CILR 514, referred to.
Freedom of Information Law (2015 Revision), s.17: The relevant terms of this section are set out at para. 23.
s.20(1)(c): The relevant terms of this paragraph are set out at para. 16.
s.26: The relevant terms of this section are set out at para. 15.
s.42(4): The relevant terms of this sub-section are set out at para. 27.
s.45: The relevant terms of this section are set out at para. 5.
s.48: The relevant terms of this section are set out at para. 88.
Freedom of Information (General) Regulations 2008, reg. 2:
“‘[P]ublic interest’ means but is not limited to things that may or tend to—
(a) promote greater public understanding of the processes or decisions of public authorities;
(b) provide reasons for decisions taken by Government;
(c) promote the accountability of and within Government;
(d) promote accountability for public expenditure or the more effective use of public funds;
(e) facilitate public participation in decision making by the Government;
(f) improve the quality of services provided by Government and the responsiveness of Government to the needs of the public or of any section of the public;(g) deter or reveal wrongdoing or maladministration;
(h) reveal information relating to the health and safety of the public, or the quality of the environment or heritage sites, or measures to protect any of those matters; or
(i) reveal untrue, incomplete or misleading information or acts of a public authority.”
1 SMELLIE, C.J.: By a letter of December 6th, 2016, the Acting Information Commissioner (“the Commissioner”)1 certified to this court2 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 October 20th, 2016 (“the order”). The order invoked s.45 of the Freedom of Information Law (2015 Revision) (“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.”
Freedom of Information—exemptions—legal professional privilege—public interest in legal professional privilege (protected in Freedom of Information Law (2015 Revision), ss. 17(1) and 20(1)(c)) overrides other public interests—Premier entitled to claim legal professional privilege over report produced by lawyers on immigration matters, certified by Premier as exempt—Information Commissioner not entitled to inspect report under s.45
Freedom of Information—enforcement by Commissioner—certification to court of failure to disclose—on reference by Commissioner inviting court to enforce, by way of sanction for contempt, order for production of document certified as exempt, court to satisfy itself that appropriate to enforce order
The applicants requested disclosure of a report under the Freedom of Information Law (2015 Revision).
A report concerning immigration matters had been prepared for the Office of the Premier by a law firm commissioned to do so by the Attorney General. One of the factors that had led to the commissioning of the report was the response of the Government to a judgment on appeals against decisions of the Immigration Appeals Tribunal. The applicants, who were journalists, applied for the disclosure of the report pursuant to the Freedom of Information Law (2015 Revision), s.7. The Premier refused to disclose it on the ground of legal professional privilege and certified that it was exempt from disclosure under the Law.
The applicants appealed to the Acting Information Commissioner (“the Commissioner”), who proposed to conduct an investigation pursuant to s.45, which provided:
“(1) In coming to a decision pursuant to sections 43 or 44, 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 subsection (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.”
The Commissioner ordered the production of the report pursuant to s.45, in order to undertake a full investigation, but the Premier refused on the basis that it constituted privileged legal advice. Section 20(1)(c) provided that a record would be exempt from disclosure if it constituted legal advice given by or on behalf of the Attorney General. Section 17 also provided that “an official record is exempt from disclosure if—(a) it would be privileged from production in legal proceedings on the ground of legal professional privilege . . .” Section 26(1) provided that “notwithstanding that a matter falls within section . . . 20(1)(b), (c) . . . access shall be granted if such access would nevertheless be in the public interest.” Section 42(4)(b) provided that on consideration of an appeal the Commissioner “shall not nullify a certificate issued under section 25.”
Pursuant to s.48, the Commissioner certified the failure of the Office of the Premier to disclose the report and submitted a reference to the court inviting the court to enforce the order by way of sanction for contempt.
Held, refusing to grant the order sought:
(1) Legal professional privilege was a fundamentally important right and although recognized as having two categories, i.e. legal advice privilege and litigation privilege, it was really a unitary privilege. It was regarded in the public interest as prevailing over other public interests in the absence of clear legislative provision to the contrary. The public interest in a party being able to rely on the protection of legal professional privilege would therefore prevail over the public interest in a statutory authority (such as the Commissioner) being able to carry out his investigative functions, unless the statute was unambiguously clear in its intention to override the protection of the privilege. As ss. 17(a) and 20(1)(c) of the Freedom of Information Law expressly protected legal professional privilege, and in the absence of any express provisions abrogating the privilege, the question was whether, by necessary implication, the Commissioner’s powers of investigation under s.45 could properly be construed as infringing or abrogating the privilege. There was also a question whether limited disclosure to the Commissioner for the purpose of the investigation sought to be carried out under s.45 would involve only a limited and permissible infringement of the Premier’s claim to legal professional privilege and also, notwithstanding the terms of s.42(4)(b) that it should not be nullified, a permissible limited infringement of the Premier’s certificate of exemption (paras. 35–36; para. 52; paras. 58–60).(2) The Premier, as a minister and public authority within the meaning of the Law, had, as a necessary implication of ss. 17(a) and 20(1)(c), to be recognized as a person entitled to the protection of legal professional privilege. Any other view would render meaningless the right under the Law to issue a ministerial certificate based on the privilege. The importance of the privilege to the conduct of the affairs of the ministry of the Premier for the advancement...
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