By Alric Lindsay
According to the constitution of the Cayman Islands, the Director of Public Prosecutions has the discretion to start criminal proceedings against any person before any court in respect of any offence, to take over and continue any such criminal proceedings that have been instituted by any other person or authority and to discontinue any such criminal proceedings. In October 2024, a freedom of information request was sent to the DPP to obtain details of the number of matters that the DPP decided not to prosecute from 2017 to date, the nature of allegations detailed in these cases and reasons that the DPP decided not to prosecute. On February 20, 2025, the Office of the Ombudsman stated that it would be an “unreasonable diversion of resources for the ODPP to provide the requested information” and recommended closing the appeal for the records.
Correspondence leading up to records roadblock
The initial lack of transparency was apparent in an email from the DPP dated November 4, 2024. This stated:
Your FOI request has been reviewed and it has been determined that to provide the information requested would unreasonably divert resources. See section 9 (c) of the Freedom of information Act (2021 Revision).
If you could reformulate your application perhaps we can identify the records you are researching and provide the information.
On the same date, a response was sent to the DPP stating, “Presumably, the DPP keeps good records and would have maintained a list of matters where a decision was made not to prosecute and the reason why.”
On November 26, 2024, the DPP responded as follows:
Please be advise that pursuant to s9 ( c) of the Freedom of Information Act (2021 Revision) to provide the requested information would unreasonably divert the department’s resources for the following reasons:
1.The ODPP receives 2,500 annually to rule on.
2. A proportion of those cases will be decisions not to proceed because of insufficient evidence or for public interest reasons: these would involve decisions not to prosecute.
3. Cases which go to court are subject to continuous review and some may be withdrawn before getting to a jury/judge for determination: these also involve decisions not to prosecute.
4. Indictments/charges sheets will include numerous offences and decisions may be made to accept alternative charges : these also involve decisions not to prosecute.
5. To compile a list from 2017 to 2024 is too wide even if we started the process, resources would take weeks.
Given the above, the period of the records request was reduced to the period from 2022 to 2024. The aim of this request was to reduce the strain of resources on the DPP to provide the public with transparency.
On November 27, 2024, the head of the DPP said:
I have been included in your correspondence. Reducing the time period from 2017 to 2024 to 2022 to 2024 would limit the amount of time and resources.
However, this would still be a mammoth job and, for the same reasons as set out by my colleague… we are unable to assist with this request.
Correspondence was sent to the Office of the Ombudsman on December 2, 2024, to challenge the DPP’s decision.
On February 20, 2025, the Office of the Ombudsman gave its non-binding analysis at an informal appeal stage. This analysis stated as follows:
Dear Mr. Lindsay,
We trust this email finds you well.
We have completed our review and consideration of this matter and made the following assessment:
The Office of the Director of Public Prosecutions (ODPP) indicated they do not hold statistical data that would respond to your requests. The ODPP holds records containing the information required to create the requested statistics; however, the FOI Act does not require a public authority to create any record that has not been created in the normal course of business. Additionally, the Ombudsman has no power to order the creation of a new record.
Since the ODPP does not keep the requested information in statistical form in the normal course of business, and the Ombudsman cannot order them to do so, we must determine whether the ODPP could review the records for disclosure to you. We determined that the responsive records are subject to section 17(1)(a) and (c) – Records subject to legal privilege, etc
17. (1) A record is exempt from disclosure if —
(a) it would be privileged from production in legal proceedings on the ground
of legal professional privilege;
…
(c) it is legal advice given by or on behalf of the Attorney General or the
Director of Public Prosecutions.
In our view, the records are exempt from disclosure, and since the exemption in section 17 is absolute, it is not subject to the public interest test.
In any case, given the application of section 9(c) – unreasonable requests,we made inquiries as required under section 10(3)(b) of the FOI Regulations,
10. (1) Before a public authority makes a decision to refuse access under section 9(c)
of the principal Act (on the basis that the request would unreasonably divert its
resources) the information manager shall send written communication to the
applicant —
…
(3) The information manager shall make a determination on “unreasonable diversion of resources” on a case by case basis and for this purpose —
…
(b) the types of factors which shall be considered to determine whether the diversion of resources would be unreasonable include —
(i) the nature and size of the public authority;
(ii) the number, type and volume of records falling within the request; and
(iii) the work time involved in fully processing the request.
Nature and size of the public authority
The ODPP has explained that given the nature of their work and the current human resources available, gathering the requested data would be a mammoth task.
Number, type and volume of records falling within the request
The ODPP indicated that:
- Approximately 2,500 files are received annually.
- The number of charges per annum could exceed 4,000, given that some matters received by the ODPP may include numerous offences.
Work time involved in fully processing the request
- The ODPP expressed that their case management system is not set up to provide the requested details, which was confirmed in detail by their IT professional.
- In addition, it would take a number of weeks to pull each file and categorise the charges and outcome manually.
- For the reasons above, we believe it would be an unreasonable diversion of resources for the ODPP to provide the requested information, and we recommend closing this appeal.”
Implications of lack of transparency
When the DPP claims that it is unable to produce statistical information about prosecutions and reasons for not prosecuting due to resource constraints, several governance, transparency, and accountability issues emerge.
For example, governance structures should include mechanisms for regular reporting and accountability, and failure in this area raises questions about the operational efficiency and effectiveness of the DPP’s office.
Not providing the information to the public also cripples public trust in the DPP’s office. That is, when the DPP cannot share statistical details, it may lead to public scepticism about the fairness and effectiveness of prosecutorial decisions, undermining confidence in the legal system.
Without access to information, it becomes difficult for members of the public to assess whether decisions not to prosecute are justified or consistent, leading to potential perceptions of arbitrary or biased decision-making.
Claims of insufficient resources can highlight broader systemic issues, such as inadequate funding or support for the DPP. This raises questions about how resources are allocated and whether the DPP’s office is appropriately supported to fulfil its mandate.
If the DPP cannot provide transparency regarding prosecutorial decisions, it can have serious implications for victims of crime and society at large, particularly concerning the perceived legitimacy of the DPP and the protection of public safety.
What happens next?
Regarding what happens next, the Office of the Ombudsman stated that, if requested, a formal hearing may now be conducted to decide on this matter; however, it is “unlikely that the Ombudsman will reach different conclusions from the previously shared opinions.”
The Office of the Ombudsman clarified that there is a three-step process leading to a formal hearing. These steps are as follows:
- Stage 1: initial assessment
- Stage 2: informal resolution and
- Stage 3: formal hearing.
If a formal hearing does not yield transparency for the public, then an application may be made to the Grand Court for leave to seek judicial review of the decision of the Ombudsman.
All of the foregoing means that a request for simple transparency for records from the DPP could take up to a year, or perhaps more.
