Info boss warns PA’s not to hide behind confidentiality clauses
Stuart Kernohan, former Cayman Islands commissioner of police
(CNS): The information commissioner was forced to uphold the legal department’s refusal to release the amount of public money it spent to pay off three senior police officers in the fallout of Operation Tempura because of a court order. But in his latest appeal ruling Jan Liebaers urges public authorities not to hide information behind such clauses because it may be embarrassing to disclose, warning them that such clauses can still be overturned.
In the case regarding the substantial amount of tax payers’ money handed out to former police commissioner Stuart Kernohan, former deputy commissioner Rudolph Dixon and former chief inspector Burman Scott, the information boss upheld the refusal because to order the documents release would be contempt of court due to the judicial order relating to the confidentiality of pay-off deals.
However, Liebaers noted that making contractual agreements between government and third parties confidential will not protect them from the freedom of information law.
“There is a risk that public authorities may be tempted to use contractual agreements containing confidentiality clauses in order to remove controversial or embarrassing information from public scrutiny,” he said, noting that all agreements are governed by law, including the FOI legislation, which applies to all records held by government.
“The marking of a document as ‘confidential’ by a public authority, or the addition of a confidentiality clause in a contractual agreement, does not place it outside the reach of the FOI Law,” the information commissioner added.
Liebears said there was a strong public policy interest in openness, transparency and accountability expressed by the Legislative Assembly when the FOI Law was unanimously passed in 2007 which “cannot be set aside by simply contracting out of FOI”.
“Public authorities should carefully consider whether confidentiality is necessary and appropriate before agreeing to sign an agreement containing a confidentiality clause, and should not use such clauses unless absolutely necessary,” he stated, adding that authorities needed to warn other parties to an agreement that disclosure may still be required.
In this case, where the court order has tied the information commissioner’s hands over the pay-offs, there is no doubt about the public interest in the payments.
Liebears said, “Disclosure would promote the accountability of Government, specifically the accountability of Government expenditure in the context of the publicly funded, and very costly Operation Tempura and … promote greater public understanding of the processes and decisions of public authorities, in this case the Portfolio of Legal Affairs.”
He noted that the countervailing factors supporting the confidentiality in that the courts have confirmed that the public interest in maintaining confidences is “very strong” in this case but stressed that confidentiality clauses will not always prevent the release of information. Attempting to hide behind it may not work and is contrary to the spirit of open government heralded by the implementation of the law, the information boss added.
In this case, the cash paid out to the three former officers, all of whom fell victim to the still largely undisclosed twists and turns of Operation Tempura, will remain under wraps, like so much else has regarding the ill-fated investigation. Tempura continues to cost Cayman taxpayers, largely because of the fallout from the conduct of the UK’s investigating officers in the enquiry as well as the conduct of the local authorities involved.
Category: Crime, Government oversight, Police
Kernohan’s father was not only very ill, he passed away. Kerrnohan also did not ‘mastermind’ Tempura. The investigation was launched by Leigh Turner at the FCO contacting the Head of the Met, Sir Ian Blair, at the end of August 2007 then run by Bridger and John Yates – the documents proving that are public records.
And JJ was re-instated by Baines after Lyndon Martin’s September 2009 acquittal not by one of the Acting CoP’s.
Such ignorance shows you have no idea what you are talking about.
Anonymous
@4:16 I think that you should get your facts straight. Firstly, I’m not even sure that SK father was really ill. Secondly, SK was ordered back by his boss and he refused to return. Thirdly, and more importantly, SK was the architect of this fiasco and if he was as good as he was being paid he would have done a better search for the truth before he set the country on this course of a raid on the public’s treasury. He didn’t deserve a penny unless it was coming from those so-called brilliant minds that plunged the country into this dark chapter. But one day the truth shall be revealed.
P.S. And what’s up with this nonsense about the Acting CoP. Wasn’t he who got JJ reinstated? Did he apply for the job?
18/04 @4:16- the old boys network at work!
The more I hear about this sad debacle, the more it points to greed as the motivating factor. As a Caymanian I feel not just a bit angry that we are obviously sitting ducks for these avaricious forces — and how frustrating that the people at the head of governance who are supposed to safeguard the best interest of the people of these islands are either blind or on collusion.
I feel literally sick and more than ever frustrated that we are caught with no real workable options this constitutional bind.
It is so encouraging to see the professional way in which Jan Liebaers remains faithful to his role in terms of the intent of the FOI law. Despite the road blocks and the conflicts and complexities, he continues to bring us back to true north, cutting away the chaff-like distractions and pointing us to the core values we must respect.
Wouls that we were privileged to have more civil servants of such mettle.
time off for personal reasons, do not return, gets rewarded. WOW.
Although the FOI ruling on the Governor’s Report is nonsense.
The reason the original ICO ruling on the Aina report was nonsense is because it concentrated more on trying to settle a political point about a contentious section of the FOI Law than getting the documents released.
One of the problems with this whole application is the applicant and appellant has more practical experience of FOI than either the former ICO or her deputy but once this turned into a p***ing contest between the ICO and the Governor he was shut out of it all.
Instead of taking advice from someone knew what they were talking about the ICO decided to hand over something CI$500K to a bunch of lawyers who had never dealt with FOI in court before. The result of this idiocy is well documented in court records.
A decent public body considers its jurisdiction at the start of a determination as to the exercise of its powers. The ICO had no jurisdiction over the Governor.
I still don’t see why Kernohan deserved a payoff, when he left with permission of the Governor and refused to come back when ordered by the Governor to do so, resulting in his termination from the RCIP.
Think about it RSS Feed.
Jernohan became the hunted…why? remember he called England for help, and when help arrived, the help turn the table on Kernohan and made him the hunted.
Get your facts right.
After his father passed away in 2008 Kernohan (or his lawyers) asked at least three times for assurances that the Tempura investigation into his conduct was concluded and that on return to Grand Cayman he would be re-instated as CoP but didn’t get a straight answer. We now know that was because, even though the investigations had actually been concluded, the SIO of Tempura was still unsuccessfully trying to cook up excuses to keep Kernohan on ‘gardening leave’.
At the time the Acting CoP was an old friend of the SIO – they’d both served at the Met together – so might it not be fair to assume that Kernohan’s return wasn’t exactly a welcome prospect?
Personally, having met Kernohan on several occasion when he was CoP my guess is that if he had been re-instated Tempura would have immediately been put on hold pending an investigation into what was going on and how much is was costing. I’d say £787-a-day was a pretty strong incentive to make sure that never happened and to engineer his sacking.
Whether or not the people of the Cayman islands should have ended up paying for this is another matter but the bottom line is that the underhand way Kernohan was treated was disgusting and he deserved every penny of the settlement.