Ritch ruling could threaten FOI, says info boss

| 11/04/2017 | 28 Comments

(CNS): Acting Information Commissioner Jan Liebaers has raised concerns that public authorities could hide behind the claim of legal privilege to block his office from controversial documents that become the subject of an appeal due to a recent legal decision. The governor’s use of the ‘nuclear option’ to prevent him from seeing the Ritch Report last week now leaves him no legal means of accessing that document, but he told CNS he would still like to appeal the chief justice’s earlier ruling to address much wider questions relating to freedom of information that it raises.

This battle is not about the release of the increasingly controversial document relating to the government’s immigration policy, as that now will not happen, but whether the information commissioner will in the future be able to see disputed records when an agency claims legal privilege.

“The main worry is that the chief justice’s ruling gives public authorities a blank cheque to claim legal privilege, and I would not even be in a position to verify whether the exemption actually applies,” he said. “That sort of loophole could easily be abused and the ICO would not be able to do anything about it.”

Liebaers pointed out that legal privilege has been wrongly claimed in the past by several public authorities trying to keep documents out of the public domain on numerous occasions, but due to his determination they were eventually released because they did not fall within the definition of the law of what is legally privileged.

Until he began the appeal hearing regarding the two FOI requests that had been made for the Ritch Report, Liebaers had seen all the documents involved in appeals, even where he has determined that the records should not be released. The basic issue for his office is that he needs to be able to make the determination in every case but the ruling by the chief justice could put a stop to that.

Given that the decision will set legal precedent and have long-term implications for the entire freedom of information system, Liebaers said it was important to get some questions that have been raised by this case answered. “It’s now or never,” he warned, pointing out that the court had ruled without any argument or hearing from the parties involved.

He noted that it had raised many legal issues that the Court of Appeal needs to look at before the precedent is set, paving a way for possible abuse in future.

Governor Helen Kilpatrick’s decision to issue her certificate has ended the commissioner’s hopes of ever seeing the Ritch Report but he has even more concerns that it may have ended his chances of getting the legal queries that are important to the law in general answered as well.

Liebaers said the governor did not tell him before she took the ‘nuclear option’ and fired off the certificate, even though his office was filing an appeal. He said that no one had offered him any reasons why she issued the certificate or asked his office why he felt the need to appeal, despite the importance to the application of the freedom of information law.

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Category: Government oversight, Politics

Comments (28)

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  1. Anonymous says:

    Guess us Caymanians is just too plumb stupid fo see them there legal scratchings.

  2. Anonymous says:


  3. Anonymous says:

    Fly the friendly skies with the PPM!

  4. Anonymous says:

    maybe they afraid of civil unrest? once the public. who rightfully should know gets a wind of it…hey guys, we love in a democracy! or so we think!!??

    • Anonymous says:

      No we do not

    • Anonymous says:

      Civil unrest? Nobody has ever excelled that much work or urgency in these islands? Last time I ever saw anyone in a hurry was when a rumour started that Popeye’s were giving away free food.

  5. Anonymous says:

    Shows why someone with proper qualifications and experience needs to replace him.

  6. SSM345 says:

    Where is the windshield bandit and why hasn’t he visited Ezzard yet?

  7. Anonymous says:

    As a Caymanian I want to see this report as I believe it is in the public interest to see it. But more importantly I want to see the last 2 police investigations that were sealed because they wouldn’t be good for our relationship with the U.K. Now that is REALLY in the public interest. But one thing I know for sure… had that been a Caymanian civil servant questioning the Chief Justice and the Governor we would have been put out to pasture or shifted from our position already! Or worse, facing charges. This should finally be a wake up call to all Caymanians that while being Caymanian is not a job requirement, neither is being a non-Caymanian. And we should finally be understanding enough to realize that we bring these people here put them in these positions to police us and what happens? Power goes to their heads. Perhaps now we can start to talk about the fact that there is no check and balance on those that themselves act as check and balance. Finally we should see that these people are not above us, or infallible or incapable of bias in doing their jobs. Who holds them accountable for their actions? No one. Which is why they don’t want us holding those jobs.

    • Jermiah Jonson says:

      If “caymanians” truly want to see justice served in their country they need to man up and stop hiding behind anonymous. No one pays any attention to Anonymous conscience. Its your right stand up for it. I am a foreigner.

  8. Anonymous says:

    I suspect this would not pass muster in the EU..and what I really like about the EU is if something is really in the public interest or domain, it comes out. Which generally means you better be damn sure what you are doing is right in the first place, because you will be found out. All this cloak and dagger stuff- if the government received advice, why would that advice not belong in the public domain? After all the taxes that fund government come from all of us everytime we buy something etc…

  9. Anonymous says:

    BS. The law on attorney/client privilege is well established, and the judge applied it. Next case, please.

    • Anonymous says:

      The problem with Jan Liebaers and the entire crew at the ICO is they have no legal training and are thus unable to make proper judgements when there are legal issues. Government must ensure that properly qualifed and trained individuals hold posts like the ICO and soon to be Ombudsman.

      Legal profesional privilege is an ancient and respected principle. Without it government could not function. And if there was any doubt at all about it in Mr. Liebaers’ mind the CJ’s articulate ruling should have removed it. Mr. Liebaers has a copy of the engagement letter between rhe Attorney General and Rirch and Conolly. It is plain on reading the letter that what is being sought is legal advice. One does not usually request medical or accounting advice from a law firm.

      Mr. Liebaers is being disingenuous. His ego has been hurt and he wants to use rhe public purse to redress it. Wrong Mr. Liebaers, wrong! Even the ICO is subject to the law and bound by decisions of the court. Learn to live with that realisation and get on with the job.

    • Anonymous says:

      The last time I checked Liebers was not a lawyer. So let’s hope he doesn’t start going to law school like so many expats in key positions in government, paid for by the taxpayer and our own real Caymanians are blocked from going.

    • Anonymous says:


      FOI isn’t threatened just because you didn’t get info for your on PR application that the rest of applicants would not have seen anyway. That wasnt going to be released . Privilege was established before the report was made available to gov. It was obvious to me from the time gov said they were going to commission legal advice on how to handle the PR mess that privilege was going to apply. Shocker!!!

      Gov told us the changes as a result of the report so all applicants know what the new or change to criteria is.

      Im willing to bet money that the FOI applicant is also a PR applicant. Good strategy to request the report but lets face it, just because the gov spend money doesnt mean all eyes should see. There are somethings the rcips wont let you see and you could argue til you blue in the face your eyes nah seeing it and shouldnt see it.

  10. Anonymous says:

    Man, when the Chief Justice says that something has legal privilege, believe him. Who are you to question the Chief Justice’s ruling? You are no Judge, or Judge of a Higher Court. Have some respect for authority. I have yet to ever see a ruling by the Chief Justice overturned by a Higher Court. So accept it and stop wasting Government’s money pursuing something you have no business in.

  11. Jotnar says:

    As the old song goes:

    “Goodbye-ee, goodbye-ee,
    Wipe the tear, baby dear, from your eye-ee,
    Tho’ it’s hard to part I know,
    I’ll be tickled to death to go.
    Don’t cry-ee, dont sigh-ee,
    there’s a silver lining in the sky-ee,
    Bonsoir, old thing, cheer-i-o, chin, chin,
    Nah-poo, toodle-oo, Goodbye-ee.”

    No much point listening to what Jan thinks about this or any other issue. He asked too many awkward questions, and he has been Duguayed. Job restructured out of existence. Da’s wha ya get for taking FOI seriously. Thanks for trying. Auditor General, look and learn.

    • Anonymous says:

      It is vile of this poster to use a song sung before soldiers marched off to die in the trenches of the Great War to make some sort of feeble point about the Information Commissioners office….it is NOT being restructured out of existence and the Duguay reference is stupid because the man who replaced him …Swarbrick….was a far better manager of the Audit Office than Duguay and even tougher than him in his comments. Grow up, Jotnar. You’re not the only one who knows the lyrics made popular by Joan Littlewood in “Oh what a lovely war”.

  12. Anonymous says:

    Important to note Mr. Liebaers that the Chief Justice said it would not be “appropriate” to enforce your order as in the factual circumstances there could be no doubt that the Ritch Report contained legal advice and there was no suggestion of bad faith on the part of the Premier. In the absence of such circumstances or the presence of possible bad faith, it might be appropriate to enforce an order for production. It’s important to remember that enforcement in this context is an exercise of discretion by the court. The judge won’t always agree with you, but the ruling just does not hamper your office as much as you think.

  13. Anonymous says:

    This shows how out of touch Liebaers is. Why should public money be wasted on a purely hypothetical appeal?

    • Anonymous says:

      Why? Why you ask?

      Because, we deserve to know. Because we paid for this report. Because it is unreasonable to to treat the electorate like children. Because the only reason not release it is that they are hiding something. Because it affects each and every Caymanian on this rock. Because they should not be allowed to hide behind a technicality. Because releasing it is the right, democratic, transparent thing to do. That my friend is why.

  14. The Gambler says:

    I’m betting FOI Commissioner Liebers does not get his contract renewed even though his concerns are legitimate and his position is the right one.

    Now That’s Progressive

  15. Anonymous says:

    My God, we are a disgraceful nation.

    I am not at all angry with the Governor. She is of course only doing as she is told….by whom do you ask?

    Well, who do you think??? The Mother Country.

    I wonder how long this “plan” has really been in place….could be decades really….only those directly involved will know.

    How can we accept that we paid for this report and we will never see it! This is not democracy…..this is something else entirely.

    • Anonymous says:

      Crap. Fact is much of the immigration and residency rules here would never be made law in the UK. Arbitrary points system and positive discrimination don’t fly in England and Kilpatrick should be ashamed of herself.

  16. Anonymous says:

    this place no democracy????? and yes. i am a born caymanian?

  17. Anonymous says:

    cat and mouse game huh? go jan go….they need to answer……

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