(L-R) The FCO’s Miami-based Law Enforcement Adviser Larry Covington, RCIPS Commissioner David Baines, and Head of the Caribbean and Bermuda Section of the FCO Tony Bates (courtesy of Cayman Prepared)
The acting information commissioner in the Cayman Islands has once again ordered a redacted release of the infamous Operation Tempura corruption report after reviewing the objections of the Governor’s Office, which has refused to release the documents for four years.
In his latest ruling Jan Liebaers revealed further twists and turns by the authorities, including a U-turn by the police commissioner over giving the Information Commissioner’s Office (ICO) access to records needed to conduct the reconsideration of the case, which the ICO was doing on the instructions of the court. Liebaers was also damning in his criticism of the poor arguments submitted by the governor’s representatives in an effort to keep a tight lid on the records.
In yet another order to release the documents, which is likely to end up in the courts once again, Liebaers has rejected the governor’s desire for a blanket ban on the information getting into the public domain and pointed to significant weaknesses in the submission from her office over why the records should remain secret.
He described interpreting the governor’s arguments as “extraordinarily difficult because of the way they have been presented, which can only be described as disjointed, repetitive and at times illogical and even fraught with grammatical errors”.
Liebaers added that the Governor’s Office “provided little in the way of a detailed legal analysis as to why the exemption” applied. He said the approach to their submissions was “illogical and haphazard”, as he once again warned public authorities that if they are called upon to argue exemptions under the Freedom of Information (FOI) law, their arguments should be supported by cogent and clear evidence “systematically and logically laid out”.
He noted that the burden of proof rests on the “public authority to demonstrate how and why any exemption applies, and it is not up to the information commissioner to build the case for the public authority”, which the ruling reveals was the case in this hearing.
“The lack of specific reasoning in the submission and the governor’s referral to the police commissioner for further information and evidence indicated to me that the Governor’s Office felt it was my responsibility to locate evidence, and build the case in support of their claim of the exemption in question,” he explained.
The main issue the acting information commissioner had to consider in his second review was whether or not the records were now exempt from release because of an investigation by the Royal Cayman Islands Police Service (RCIPS) into Martin Bridger (the lead investigator for Operation Tempura) for misconduct in public office and some six other alleged offences that relate in part to some of the issues considered in the complaint and the report.
While Liebaers concluded that some of the information may relate to this investigation, he said much of the report could still be released with redactions without causing any possible future prejudice should Bridger ever be charged with any crimes and end up in court.
In a lengthy and very detailed decision, the information commissioner revealed how he had been offered access to the case files in the ongoing and still rather mysterious probe that the RCIPS have begun into Martin Bridger after they dismissed his own complaints. But after the ICO had looked at the RCIPS investigation records for a few days, Police Commissioner David Baines changed his mind and began blocking the ICO’s access after he learned that Liebaers had also contacted Bridger as part of his review.
As a result of the about-face, which Liebaers said was “inconsistent with the course of action explicitly agreed with the police commissioner”, he issued a formal order for access to the records under section 45 of the FOI law. But Baines accused the information commissioner of interfering with a police investigation and instructed that no further access to the records would be provided and made it clear he would fight Liebaers’ order in court.
With communication broken down, no sign of the ICO getting to see the case files again and faced with the constantly shifting positions adopted in relation to potential exemptions from disclosure by the Governor’s Office, the commissioner put the ball back in the UK representative’s own court. He asked for them to justify their exemption argument regarding the probe.
But with what he described as the poorly argued and sometimes nonsensical submissions and their clear misinterpretation of the last court ruling that had thrown the decision back to the ICO for reconsideration, Liebaers eventually concluded that there was no evidence to support any blanket exemption. He ruled again that the documents should be in the public domain, albeit with a number of redactions to protect any possible future proceedings involving Bridger.
The controversial documents are now the longest withheld records subject to FOI request in the Cayman Islands. They consist of a complaint made by the legal advisor Martin Polaine and Bridger on the bungled internal police probe into corruption in the RCIPS, which resulted in a well-documented catalogue of costly lawsuits, and the report over why the complaints were dismissed.
The records became the subject of an FOI request in February 2012 but the request was refused and so began the long battle for access. From the very beginning the previous information commissioner, Jennifer Dilbert, was of the opinion the documents should be released but the Governor’s Office has fought tooth and nail for three years to stop the documents being made public and in particular getting into the hands of the media.
While Operation Tempura is estimated to have cost the public purse well over $10 million, the lawsuits and continued fallout, as well as the four-year FOI drama have now added to that tab, which continues to be picked up by the Cayman Islands taxpayers.
Republished with permission of Cayman News Service