The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

EMAILS between members of Save The Bays (STB) had “no specified restriction of access” or “conditions expressed against access or dissemination”, a Supreme Court judge was told yesterday.

In a substantive hearing on a constitutional motion before Justice Indra Charles concerning the recent disclosure and tabling of private STB emails in Parliament, Crown representative Dr Lloyd Barnett argued that there was no indication in the copies of the disputed emails that the contents or exchanges themselves were not for public consumption.

Dr Barnett, Loren Klein, Deputy Director of Legal Affairs Franklyn Williams, Darcell Smith-Williamson and Hyacinth Smith appear for Marathon MP Jerome Fitzgerald, Fox Hill MP Fred Mitchell and Attorney General Allyson Maynard-Gibson, who are all respondents in an action brought by the Coalition to Protect Clifton Bay (Save The Bays); Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, Fred Smith and Ferron Bethell.

In March, Mr Fitzgerald, the Minister of Education, accused STB of being a political organisation seeking to “overthrow” the Progressive Liberal Party government under the guise of an environmental group. In the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.

Speaking outside Parliament, Mr Fitzgerald later warned members of the environmental group to “batten down” because a “category five” hurricane was on its way, as he threatened to table “every single” email and bank statement in his possession if needed to protect his integrity and parliamentary privilege.

Additionally, Mr Mitchell claimed in Parliament in March that some $8.25m has been filtered through various organisations connected with STB - locally and internationally - from 2013 to 2015.

Those details were highlighted in an affidavit filed by STB’s Communications Director, Paco Nunez, on which the applicants have relied to prove that the respondents were, in fact, in possession of private emails.

Mr Nunez noted that the tabled documents did not disclose “how, or when, or the identity of the person from whom the second respondent obtained the tabled documents.”

“They allege this amounts to a contravention of these constitutional rights: 15 (c), 20 (8), 21 (1) and 23,” Dr Barnett noted.

“It is necessary for the applicants to prove an unlawful entry, search or seizure of their private space. No such evidence has been adduced,” the Crown lawyer stressed.

“It is remarkable that the statement of facts (by the applicants) provided no identifying evidence to the effect that the respondents or the government which they confuse as the same, obtained possession of the emails as they alleged. An examination of the emails, or rather the statements made in Parliament, and their treatment, do not disclose any features of privacy.

“The emails were, in some cases, addressed to 12, or 27, or more persons There was no specified restriction of access to the emails or conditions expressed against access or dissemination.

“Insofar as the case concerns emails, they are, by their nature, accessible in the public domain of the Internet and to quote my learned friend, ‘anything on the Internet is accessible because all that involves is the projection of data’. There’s no evidence of treatment of emails as private, no evidence of encryption or password protection,” the court heard.

The four emails exhibited by the applicants, Dr Barnett said, concerned a draft of an advertisement, a complaint to the Commissioner of Police about hate rallies, and correspondence of the Grand Bahama Human Rights Association.

Dr Barnett said their only evidence is “the reference to and use in parliamentary proceedings of the material that is the subject in this application”.

The attorney dismissed exhibited news articles as impermissible in law.

He was also dismissive of Mr Nunez’s affidavit and stressed that “the affidavit, by its terms and nature, should be rejected because he made himself as an authority and a judge on a number of matters”.

In April, Justice Charles granted the injunction barring MPs from disclosing STB’s emails in Parliament. The Office of the Attorney General wants the injunction set aside.