The Commission of Inquiry held a directions hearing on July 8 to address what Commissioner Sir Gary Hickinbottom called the “disorganised and unhelpful” disclosure of documents from the government’s Inquiry Response Unit, among other issues.
Government leaders have said the taxpayer-funded IRU was established to assist public officials in providing documents to the commission in a timely manner, facilitated by the law firm Withers and United Kingdom Queen’s Counsel Sir Geoffrey Cox.
Cabinet decided to establish the unit on Feb. 5, two weeks after the inquiry officially launched. Back in April, government said it had provided some 73,000 pages of evidence to the inquiry team.
Since then, however, the COI has complained repeatedly about ongoing issues with getting documents on time in a usable manner, and many of the initial hearings were devoted to tracking down undisclosed information.
Such complaints continued July 8, when COI Counsel Bilal Rawat said that pages provided to the commission are often given out of order, especially Cabinet minutes.
Dismissive?
Mr. Rawat explained at the beginning of the hearing that when he raised the issue with Withers partner Niki Olympitis, the response was dismissive.
“One could perhaps glibly respond that given it took him five minutes to sort out, it should be no hardship for Withers, given their substantial resources, to be able to do it on a routine basis,” Mr. Rawat said. “The point is that it only introduces delay in the work of the COI if material is provided out of order.”
He continued, “Frankly, we should not have to be — it should not be expected that we need to raise issues of this sort with a global firm that’s providing a commercial service.”
Considering the IRU has placed itself at the centre of document disclosure, he said, the unit must follow the COI’s protocols and avoid slowing down the process.
IRU pushback
The IRU, however, pushed back. During the July 8 hearing, Withers Senior Litigation Associate Sara-Jane Knock appeared before Sir Gary on behalf of Attorney General Dawn Smith and some House of Assembly members.
A tense exchange ensued with the commissioner about how the unit has provided evidence to the commission since it was launched.
“A lot has been said about the IRU’s failings to provide disclosure, and I would like to have the courtesy of addressing the commission without being interrupted by you, sir,” she told Sir Gary.
Ms. Knock described the challenges of being required to provide documents across numerous platforms.
“With respect to the Cabinet minutes, some of these have been provided three times, and as we have previously stated, they are provided in the same way that the Cabinet provides them to us,” Ms. Knock said. “After we were told that you wished them in a different way, we uploaded them in a different way. We spent days and days reorganising them for you.”
She said the IRU has provided documents in the same way it received them, and it is up to the commission to organise them.
“It is quite frankly ludicrous to suggest that they are provided in a disorganised, unhelpful way, commissioner,” she added.
‘Looking forward’
Sir Gary said he had found it important for the COI to have an independent platform for managing the documents it receives, so he preferred that documents be uploaded to the Relativity system rather than being shared through the government’s existing DISCO system.
He asked Ms. Knock if despite the issues raised, “Looking forward — which I’m very anxious to do — do you, therefore, propose to disclose documents in the same manner?”
Ms. Knock said yes, and Mr. Rawat replied that this approach would “inevitably” slow down the investigation.
The attendees then discussed some practical matters of disclosure, including document formats, affidavit indexes, redactions, hard-copy bundles, privilege claims, and incomplete or outstanding affidavits.
Considering the document-gathering process has repeatedly taken longer than anticipated, Mr. Rawat said the commission requested hardcopy bundles of affidavits from government as well to more easily prepare for fast-approaching hearings concerning statutory boards and crown land.
However, Ms. Knock said the Attorney General’s Chambers would not comply with that protocol given the cost, labour demands, security concerns and pandemic restrictions.
Delays anticipated
Ms. Knock also noted that some documents would be delayed because of the current Covid-19 spike.
“It is unfortunate that this surge has happened now and it has caused disruption, but there will continue to be disruption,” she said. “I’m receiving phone calls from people in hospital asking me to please request an extension, from phone calls talking about their sick children and their sick relatives. And so, there is not a lack of will to provide you with these documents and these affidavits. They just simply need more time. … We’re asking for some compassion from the commission.”
Sir Gary offered his thanks to the government staff who have assisted the COI amid the challenges. But he urged that all possible action be taken in a safe manner to keep the investigation moving forward in a timely manner.
“Of course, most of these requests were made some time ago, long before the unfortunate Covid surge,” Sir Gary said. “But what I’m far more interested in is to ensure that the work of the commission can proceed as best it can, sensibly and safely, in the circumstances that we find ourselves in.”
The commission’s full report was originally due in July, but Governor John Rankin announced on July 13 that he is granting a six-month extension.