October Decisions Roundup

In October 2023, the Information Commissioner issued four decisions:

Decisions 35/2023 and 36/2023, Bermuda Police Service

For Decisions 35/2023 and 36/2023, the Information Commissioner found that the BPS did not issue internal review decisions to the Applicants within the 6-week timeline set out in the PATI Act. For Decision 35/2023, Commissioner Gutierrez considered a PATI request for records relating to the alleged deletion of emails to a former Commissioner of Police, and for Decision 36/2023 she considers the BPS’s failure to make an internal review decision in relation to a request for witness statements on specific residential searches. The BPS issued its internal review decisions while the Commissioner was conducting her independent reviews.

Decision 37/2023, Ministry of Health Headquarters

Decision 37/2023, Ministry of Health Headquarters, brought closure to the PATI request that gave rise to the decision by the Court of Appeal, Information Commissioner v Attorney General [2023] CA (Bda) 6 Civ. The PATI request had sought records related to the 2017 agreement made between the Government and the Brown-Darrell Clinic and Bermuda Health Care Service for payments to mitigate the impact of the Government’s fee reductions for diagnostic imagining. The Ministry of Health had claimed that the PATI Act did not apply to 77 of the requested records by virtue of section 4(1)(b)(vi) of the PATI Act because the Attorney General’s Chambers had obtained or received the records while carrying out its function as the legal advisor to the Government. 

The Attorney General’s Chambers challenged the legal authority of the Information Commissioner to require copies of the records when necessary for the purposes of her review. Following the Court of Appeal’s landmark ruling in favour of the Information Commissioner in March 2023, the Information Commissioner was able to consider the challenge to the Ministry of Health Headquarters’ refusal of the records.

In Decision 37/2023, the Information Commissioner has affirmed, in part, the decision by the Ministry of Health Headquarters denying access to records because the PATI Act did not apply to the records. Commissioner Gutierrez has also reversed, in part, the Ministry of Health Headquarters’ refusal to process a set of the records or parts of records to which the PATI Act applies. She ordered that the Ministry of Health Headquarters process the records and parts of records, and issue an initial decision to the Applicant.

Decision 38/2023, Department of Child & Family Services

In this Decision, the Applicant made a PATI request for the Department’s overseas placement records. It was one in a series of requests made to DCFS related to the placement of Bermuda’s young people in residential treatment centres overseas. The requests arose amidst concerns at the time about the capacity of agencies in Bermuda to monitor for child abuse risks in such overseas facilities.

In her Decision, the Information Commissioner has found that the Department was justified in deciding that the Children Act 1998 prohibited the requested records being publicly disclosed. But Commissioner Gutierrez explained that this outcome was “inconsistent with the PATI Act’s purposes”, referring to longstanding concerns about the impact of secrecy and confidentiality provisions that were in place before the PATI Act took effect.

This Decision illustrates the need for a legislative review of Bermuda’s older secrecy frameworks—which was promised but not yet delivered on—to prevent more “unintended consequences”. The Information Commissioner welcomes the opportunity to consult on an effort to harmonise the PATI Act in this way.

Decisions dashboard:

As at 31 October, the Information Commissioner had:

Total applications: 290

Pending investigations: 50

Applications pending validation: 1

Closed reviews – decided: 170

Closed applications – resolved (settled): 31

Closed applications – invalid: 31

Closed applications – abandoned: 7

Decisions pending compliance – 11

No Information Commissioner’s Decision (or other request) was under judicial review as at 31 October.

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