In a Decision given by Jennifer Dilbert, the Information Commissioner, published on 26^th November, she upheld the Office of the Auditor General to partially withhold records relating to the Auditor General’s report on Operation Tempura.

The ICO Hearing 26 – 00312 Decision said:

“The decision of the Office of the Auditor General to redact information from responsive records on the grounds of sections 20(1)(b), 20(1)(c) and/or 20(1)(d) was upheld by the Information Commissioner. She overturned the decision of the OAG to redact information contained in one responsive record pursuant to section 17(a), but found this information to be exempt under sections 20(1)(b) and 20(1)(d).”

On 12 November 2011, the Applicant made a request to the Governor’s Office for “copies of all items of correspondence or any other written records (emails, minutes of meetings, etc.) relating to the production of the Auditor General’s report into Operation Tempura from any official who was involved or attempted to be involved, in the format and contents of the final report.”

On 23 November 2011, the Governor’s Office transferred the request in part to the Office of the Auditor General (OAG). On 29 December the OAG’s Information Manager (IM) responded to the Applicant providing access to 31 documents. Some information was redacted from a number of the provided records pursuant to sections 17(a), 20(1)(b) and (d) and 23(1) of the FOI Law, (relating to legal professional privilege, inhibition of free and frank exchange of views for the purpose of deliberation, prejudice of the effective conduct of public affairs and the unreasonable disclosure of personal information).

The applicant requested an Internal Review, and on 6 February 2012 the Auditor General upheld the majority of the IM’s decisions, making limited changes to two of the redacted documents and releasing a third in full.  On 7 February 2012, the Applicant appealed to the Information Commissioner’s Office (ICO) for a review of the decision by the OAG to deny full access to the requested records.

During the course of the investigation of the appeal by the ICO, the OAG provided  their reasoning for the use of each exemption and introduced reliance on section 20(1)(c) of the FOI Law. The OAG also accepted some of the recommendations made in the ICO’s pre-hearing Investigative Report with reference to section 23(1) of the FOI Law 2007, revised their redactions accordingly and released further records. The Applicant indicated that they disagreed with the remaining redactions and the matter moved to a formal Hearing before the Information Commissioner.

After the commencement of the Hearing, the Applicant accepted the remaining redactions made pursuant to section 23(1). The redactions to records in dispute in this Hearing and exemptions claimed are therefore as follows:

1.  Document  2 – Audit of Expenditures for Operations Tempura and Cealt – Andre – 14 Aug 2009, 20(1)(d)

2.  Document  5 – Audit of Expenditures for Operations Tempura and Cealt – Martin Bridger – 14 Aug 2009, 20(1)(b) and (d)

3.  Document  9 – Bridger Response to AG – 27 May 2009, 20(1)(b) and (d)

4.  Document  13 – Email to Alan and response back – not dated, 20(1)(b) and (d)

5.  Document  30 – Revised draft of the Report on Operations Tempura and Cealt – McCarthy – 6 & 11 Aug 2009, 17(a), 20(1)(b) and (d)

6.  Document  31 – Solicitor General’s comments to AG – 4 June 2009, 17(a), 20(1)(c)

Given the role of the Auditor General, as set out in the Background Section above, it would not be in the public interest to disclose records that would, or would be likely to, prejudice the effective conduct of the affairs of his Office. In my view, in this case the public interest in allowing the Auditor General to conduct his affairs unhindered outweighs any public interest in the disclosure of the redacted information.

I find therefore that it is not in the public interest to disclose the information redacted from records contained in Documents 2, 5, 9, 13 and 30.”

The whole of the document “ICO Decision 26-00312 OAG 2012-11-26(1)” can be found at http://issuu.com/inewscayman/docs/ico_decision_26-00312_oag_2012-11-26_1_?mode=window&backgroundColor=%23222222

In connection with another document Dilbert said because a memo from the solicitor general to the auditor general was labelled “confidential and privileged” didn’t mean to say it was. However as the redacted part of the memo offered legal advice professional privilege did attach to that exemption.