In a decision made public on November 22 2012 the Information Commissioner (ICO), Jennifer Dilbert, overturned a decision by the Cayman Islands Governor, HE Duncan Taylor.

On 8 February 2012 an Applicant made a request to the Governor’s Office under the Freedom of Information Law 2007 (“FOI Law”) for:

1.  A complaint originally filed by Martin Polaine, former legal advisor to Operation Tempura, alleging interference in the investigations conducted by that operation. According to Mr Polaine, “my complaint related to sections of the judiciary, to the Attorney General’s Chambers and the FCO (Foreign and Commonwealth Office).” This complaint was taken over by Martin Bridger, former SIO of Operation Tempura, after Mr. Polaine refused to accept the terms under which the investigation into the allegations was [sic] to be conducted.

2.  The Governor’s response to the complaint, which Dilbert understand was based on the findings of an investigation conducted by Benjamin Aina, QC and was released to Mr. Bridger in March 2011.

The Governor’s Office responded to the Applicant on 14 February 2012, withholding the responsive records, claiming that they contain defamatory material to which section 54(1)(a) applies.

On 16 February the Applicant appealed to the Information Commissioner’s Office (“ICO”).  As per ICO policies and procedures, an informal resolution process was commenced on 20 February 2012. However, on 6 March 2012 the ICO ceased the informal stage of the appeal since the Governor’s Office insisted that the responsive records could only be made available to the Information Commissioner personally, and not to her staff. A few days later, the Governor’s Office reversed its position and agreed to release the records in dispute for inspection by ICO staff. The Applicant agreed that the informal stage of the Appeal would be reopened.

During the course of the investigation of this appeal, the Applicant proposed the redaction of all names, locations and contact information. However, the Governor’s Office rejected this offer claiming that individuals would still remain identifiable, and the resulting documents would be incoherent.  In addition they raised the following new exemptions: 17(b)(i), 20(1)(d) and 23(1), relating to actionable breach of confidence, prejudice to the effective conduct of public affairs and personal information respectively.

On 20 April 2012 the ICO requested a number of clarifications of the position in respect of the new exemptions claimed, and on 22 June 2012, after several reminders, the ICO closed the informal process due to lack of progress on the part of the Governor’s Office, and the matter was referred for a formal Hearing before the Information Commissioner.

Martin Bridger was the lead investigator of the notorious Tempura investigation into alleged corruption within the Royal Cayman Islands Police Service (RCIPS) that was active between September 2007 and December 2009 costing the Cayman Islands at least $10M – although some estimates put it at nearer $30M as it continues to surface.

In an Editorial on the subject I wrote on October 30^th, 2012 I asked the question when will we ever be told the secrets of Operation Tempura? I answered it myself saying, “We won’t”.

This is because the Governor’s Office has contended that information in the report, if disclosed, would have significant negative repercussions on the reputations of the persons named, and that access to the record had been restricted to a limited number of persons.  In addition, the complainant to whom the report was sent was required by way of a confidentiality undertaking to hold the return document in confidence. The Governor’s Office also noted that the record was neither trivial nor generally accessible. They said, while accepting that there is no contractual agreement to hold the said information on confidence, they contend that, “persons would have had a reasonable and well founded expectation that the information provided would be kept in confidence.”

However, maybe I am going to be proved wrong.

On Thursday (22) Mrs. Dilbert wrote to the complainant and the Governor’s Office giving her decision that was in favour of the complainant. She said a section of the Cayman Islands’ Freedom of Information Law – which seeks to prevent the release of defamatory matter – was “not justifiable in a democratic society” and “I consider that subsection 54 (1) [of the FOI Law] disproportionately restricts the right to free expression.”

But it is not all cut and dried. The governor’s office has 45 days to seek to challenge the release of the records in Grand Court. It is only if it doesn’t seek to do this will both the complaint and the response to the complaint be made public.

Otherwise it will be another long delay and more cost.

You can read the whole of the “ICO Decision 24-00612 Governors Office 2012-11-22” here at