Ombudsman stands by ruling on chief justice’s hiring record

Ombudsman Sharon Roulstone has refused to withdraw a decision by her office over a freedom of information request on records relating to the appointment of Chief Justice Margaret Ramsay-Hale.

Earlier this month, Attorney General Samuel Bulgin sent a letter before action notifying the ombudsman that unless she withdraws her decision, which his chambers considered to be “unlawful”, her office would likely face a judicial review in court.

In response, in a letter dated 12 Oct., Roulstone defended her office’s decision, and stated, “we do not accept that the decision is unlawful and do not agree to withdraw it.”

The argument stems from a freedom of information request filed in January this year by former government legal draughtsman Bilika Simamba, who has had long-running disputes with the judiciary. His request, originally made to the Office of the Governor, was passed along to the Commissions Secretariat, which holds the relevant records on behalf of the Judicial and Legal Services Commission.

Ramsay-Hale was appointed as chief justice in September 2022, taking up the position the following month. Chief justices are appointed by the governor, on the advice and recommendation of the Judicial and Legal Services Commission.

When Simamba’s request to view the hiring records was denied, he appealed that decision to the Office of the Ombudsman.

Outlining her position in the response letter, the ombudsman stated that the Commissions Secretariat is a public authority because it is a “department” of government, as defined in the Freedom of Information Act – a point, she said, the secretariat itself accepted during the appeal. She noted the FOI Act contains no exclusion for records held on behalf of another body. She also pointed out that her office’s decision had directed the secretariat, not the Judicial and Legal Services Commission.

In its response to the FOI request, the secretariat had said the Judicial and Legal Services Commission had determined Simamba’s request and concluded that the Freedom of Information Act did not apply to the records he sought.

For clarity, the ombudsman, in her letter, noted that the decision, made by the acting ombudsman Daiana Sipos, “did not order the disclosure of any record and did not decide that any record is not exempt,” but instead directed the secretariat, as the public authority to which the request was transferred, to make its own decision on the request within the statutory time limit, rather than have the decision made by the Judicial and Legal Services Commission.

The direction instructed the secretariat to carry out reasonable searches, determine whether it holds the relevant records, and decide whether access should be granted, partly granted or refused under the relevant sections of the FOI Act.

“The Secretariat’s decision will itself be subject to internal review and to appeal to the Ombudsman,” she noted in her letter. “Any exemption claimed will be assessed on its merits at that stage, with the burden on the Public Authority. Concerns about confidentiality, personal information or the effective conduct of public affairs can therefore be addressed through the exemptions and, where appropriate, partial access and redaction … They do not need to be addressed by excluding records from the Act altogether.”

She added, “Accordingly, the Decision does not require confidential JLSC information to be disclosed, and it does not determine that any such information will be disclosed.”

She said it remained open to the secretariat “to make a fresh decision,” and that decision “will be subject to internal review and appeal in the ordinary way.”

Despite refusing to withdraw the decision, the ombudsman offered an alternative to a judicial review, stating, “We are nevertheless keen to avoid unnecessary litigation,” and invited the Judicial and Legal Services Commission to a “without-prejudice discussion on whether the issues can be narrowed or resolved without proceedings.”