The BVI government has expressed a reluctance in submitting audio recordings of Cabinet meetings to the ongoing Commission of Inquiry (COI), largely citing legal, security and privacy concerns.
While Cabinet was willing to submit its agendas, finalised minutes of meetings, drafts and notes on these meetings, as well as Cabinet Decisions (part of the Cabinet minutes); it was not in favour of releasing any audio recordings.
This was according to its attorney, Hussein Haeri, who appeared on behalf of Attorney General Dawn Smith during the COI’s first live-streamed hearing on Wednesday, June 2.
He argued that the recorded details of the exact words of a private conversation can make more impact and cause greater embarrassment than a formal summary of the Cabinet’s deliberation and decision-making.
Here’s a clip on how the government-hired lawyer argued that point:
Haeri further pointed out that electronic recordings of Cabinet meetings were not ordinarily created, but there was an exception because of the volume of meetings that happened last year.
Ordinarily, he said, only 40 Cabinet meetings might occur in any given year. But last year saw 94 Cabinet sittings. Some 51 of them were said to be special meetings to discuss the COVID-19 crisis and the government’s response to it.
Attorney Haeri noted that Cabinet was offering the written minutes from those meetings in the interest of cooperating with the COI and notwithstanding a policy in Virgin Islands Cabinet Handbook that explicitly states, “Cabinet discussions are not open to the public until after 30 years”.
Make a ruling
The Lone Commissioner of the COI, Sir Gary Hickinbottom was asked to issue a written ruling on the matter.
“We would respectfully invite your adjudication to weigh and balance whether the public interest of producing such recordings to the COI outweighs the important principles of Cabinet confidentiality and collective responsibility in this territory,” Haeri said.
The principle of collective responsibility is outlined in Section 2 of Cabinet Handbook which effectively says ministers and Cabinet members are bound to support Cabinet’s conclusions in public and should refrain from identifying personal views that may have been said during actual deliberations.
Cabinet had no idea their every word could be publicly disclosed
Haeri then told the COI that “former Governor [Augustus] Jaspert and the ministers could have had no idea at the time that every word they spoke in Cabinet could be publicly disclosed after the hearings had been recorded”.
“The principle of open and frank discussion in Cabinet may not happen in the same way if Cabinet members were to perceive that a Governor at any time — an unelected element in terms of the governance of this territory — could get the discussions that are ordinarily subject to strictures of confidentiality and collective responsibility.”
Sir Gary in response repeatedly asked how he would be expected to decide, in the public interest, the confidentiality of the recordings without first listening to them.
The Commissioner gave this example:
Since Haeri accepted that listening to the recordings was a matter for Sir Gary to decide and weigh in the public interest, the Commissioner ruled that he will use the recordings on a case-by-case basis.
Sir Gary said: “In relation to the recordings, I will not make a ruling that the COI will not seek disclosure of any of them. I reserve the right to identify a particular recording — no doubt it will be a part of a longer recording — to consider; either myself of the COI team … I do not consider that we will have to listen to many or much of the recordings which are available,” Sir Gary ruled.
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