August Decisions Roundup

In August 2023, the Information Commissioner issued 11 decisions, 21/2023 through 31/2023, involving 8 different public authorities.

Decision 22/2023, Bermuda Police Service

In Decision 22/2023, the Information Commissioner considered a PATI request to the BPS for records on complaints made against certain senior police officers. The BPS initially denied the PATI request because the Head of Authority was of the opinion that the PATI request was frivolous or vexatious under section 16(1)(e) of the PATI Act. However, during the Information Commissioner’s independent review, the BPS abandoned its reliance on section 16(1)(e) and initiated its search for records responsive to the PATI request. At the time of the Decision, the ICO was not provided with a copy of the BPS’s new initial decision on the PATI request. As a result, the Information Commissioner required the BPS to issue a new initial decision to the PATI request by 26 September 2023.

Decision 23/2023, Office of the Tax Commissioner

In Decision 23/2023, the Acting Information Commissioner considered a PATI request for access to tax debt records. The OTC’s internal review decision refused access to certain responsive records under the exemption in section 34(1)(c) of the PATI Act (prejudice to fair trial). During the Information Commissioner’s independent review, a Third Party objected to any of its records being disclosed under the commercial information exemptions in sections 25(1)(a), (b) and (c) of the PATI Act. In her Decision, the Acting Information Commissioner varied the OTC’s internal review decision, finding that the OTC was not justified in relying on section 34(1)(c) while confirming that the Third Party was justified in asserting that certain records that pertained to their business were exempt under section 25(1)(c) (adverse effect on commercial interests). She also found that two records identified during her independent review were responsive to the PATI request and needed to be processed by the OTC. As a result, the Acting Information Commissioner ordered the OTC to disclose the non-exempt parts of the records and to issue an initial decision on the newly identified responsive records by 28 September 2023.

Decision 23/2023 reminds us that the PATI Act provides rights to Third Parties when disclosure is considered for a record that contains their personal or commercial information, or information they provided confidence. Third party rights are often involved with disclosures of public finance-related records. These disclosure are important for strengthening accountability for the use of public funds. The disclosure can give the public better understanding of the actual value gained by the Government in using certain vendors, and ultimately the value for money for the public.

Decision 24/2023, Ministry of Education HQ

Public authorities are entitled under section 16(1)(a) to administratively deny access to a request if a requested record does not exist or cannot be found after all reasonable steps have been taken to find it. In Decision 24/2023, the Applicant requested access to two sets of records: all submissions to the Ministry Headquarters in response to the public consultation on a proposal for the introduction of parish primary schools, and all submissions to the Ministry Headquarters in response to the Plan 2022 consultation. Because the Applicant was satisfied that responsive records about the parish primary school consultation had been published a week after the Ministry Headquarters issued its internal review decision, the Commissioner’s independent review focused on the Plan 2022 consultation submissions.

In her Decision, the Information Commissioner confirmed that the Ministry Headquarters was justified in relying on section 16(1)(a) of the PATI Act because the records as requested (consultation submissions) did not exist. The Commissioner reasoned that the Department of Education had proactively explained in Plan 2022 itself the details of when and how various stakeholder feedback was sought and provided in 2017 during the four phases of engagement for Plan 2022’s development. None of this feedback could reasonably have been characterised as consultation submissions in response to Plan 2022.

Decision 31/2023, Bermuda Gaming Commission

In Decision 31/2023, the Information Commissioner considered a PATI request for the BGC’s responses to four prior PATI requests including any PATI disclosures made at the time. The BGC initially denied the request because it believed that disclosure would reveal the identity of the prior PATI requesters, which must be kept confidential under section 12(4) of the PATI Act. Later during the Information Commissioner’s independent review, the BGC abandoned its reliance on section 12(4) and disclosed the requested records with some limited redactions, based on the express consent of the requesters obtained by the ICO during its review. The redacted parts of the records consisted of the name of the Royal Gazette employee making the first prior PATI request as well as the signatures of individuals employed by the BGC, which all constituted personal information and therefore was exempt under section 23(1).

The Information Commissioner found that the balance of the public interests did not require disclosure of the name of the Royal Gazette employee and the signatures of individuals. With regard to the name of the newspaper’s employee, the Information Commissioner emphasised that the purposes of the PATI Act focus on efforts to hold public authorities, and not private individuals, accountable. The Information Commissioner further concluded that the weightier public interest laid with the benefit to the public of upholding the policy protecting a PATI requester’s confidentiality. Because she found that the BGC was justified in relying on the personal information exemption to redact the requested records, the Information Commissioner did not require the BGC to take any further action with respect to Decision 31/2023.

Seven failure-to-decide decisions

The Information Commissioner also issued seven failure-to-decide decisions in reviews where the public authority had not provided an internal review decision. When a PATI request does not receive a timely internal review decision from the head of a public authority, they have a right to an independent review by the Information Commissioner. August saw a significant increase in the number of public authorities that were unable to issue a timely review of the PATI request and raises concerns about preventing these deficiencies in the future. Information Commissioner Gutierrez ordered the following public authorities to provide an internal review to the requester in the following decisions:

  • Decision 21/2023, Ministry of Finance Headquarters, where an Applicant requested records on tech companies BPMS Ltd, Innofund Ltd, Innofund Innovation Incubator Ltd. and the Fastpass port of entry system. The Commissioner ordered the Ministry Headquarters to issue an internal review decision on or before Tuesday, 5 September 2023.
  • Decision 27/2023, Bermuda Police Service, where an Applicant requested access to records about a criminal complaint. The Commissioner ordered the BPS to issue an internal review decision on or before Tuesday, 26 September 2023.
  • Decision 28/2023, Customs Department, where an Applicant requested access to records about them and their company. The Commissioner ordered Customs to issue an internal review decision on or before Tuesday, 26 September 2023.
  • Decision 30/2023, Bermuda Police Service, where an Applicant requested access to records relating to themselves. The Commissioner ordered the BPS to issue an internal review decision on or before Tuesday, 26 September 2023.

In an additional set of cases, the public authority issued its internal review decision during the pending ICO review:

  • Decision 25/2023, Ministry of Legal Affairs and Constitutional Reform Headquarters, where an Applicant requested records about the Misuse of Drugs Act 1972 and medicinal cannabis.
  • Decision 26/2023, Ministry of Legal Affairs and Constitutional Reform Headquarters, where an Applicant requested access to records about legal aid case transfers.
  • Decision 29/2023, Department of Public Prosecutions, where an Applicant requested access to records regarding payments made to any lawyer or law firm to a constitutional claim filed by a specific lawyer.

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