December Decisions Roundup

In December 2023, the Information Commissioner received five new applications, issued twelve decisions, resolved one review and found one application for an Information Commissioner’s review to be invalid. As of 31 December 2023, public authorities’ compliance was pending for twelve decisions.

Five decisions involved PATI requests submitted to the Cabinet Office.

Decisions 46/2023 and 47/2023 are the result of two independent reviews from the Information Commissioner, stemming from the same PATI request. The Information Commissioner issued a joint decision for the two reviews.

  • What was requested: records about the relationship between the Government and MM&I, which led to a previous decision, Decision 06/2021, Cabinet Office. In that Decision, among other things, the Information Commissioner ordered the Cabinet Office to issue a new decision to the Requester on newly identified records. The Cabinet Office issued an initial decision to both the Requester and to MM&I as a third party, stating that access to the new records was granted in part and denied in part. In response, both the Requester and MM&I requested an internal review from the Cabinet Office: Requester challenged the Cabinet Office’s decision to withhold some records, while MM&I challenged the decision to disclose some records. As a result, the Cabinet Office issued two separate internal review decisions, one for the Requester and another for MM&I. Both the Requester and MM&I asked for an independent review by the Information Commissioner.
  • In her joint Decision, the Information Commissioner:
    • confirmed that the Cabinet Office was justified in denying access to certain responsive records because they were either created or obtained by the Attorney General’s Chambers in the course of performing its functions, were exempt Cabinet documents or were exempt personal information;
    • found that the Cabinet Office was not justified in withholding certain records, because they did not contain information received in confidence or information related to Ministerial responsibilities, as claimed; and
    • found that MM&I was partially justified in objecting to certain disclosures because the records contained personal information and disclosure of some of the records could have an adverse effect on MM&I’s commercial interests or would result in a breach of confidence.
  • What was the outcome: Commissioner Gutierrez ordered the Cabinet Office to disclose the non-exempt records.

The joint Decision is the first in which the Information Commissioner considered a public authority’s compliance with the requirements to uphold a third party’s rights under the PATI Act. It was also the first decision where the Information Commissioner conducted independent reviews which were prompted by both a PATI requester and a third party. Decisions 46/2023 and 47/2023 highlight for public authorities the importance of upholding a third party’s rights during the processing of a PATI request, as well as explaining the procedural and substantive rights that a third party has under the PATI Act.

Decision 48/2023

  • What was requested: records relating to BPMS Ltd., InnoFund Ltd. and the InnoFund Innovation Incubator, including two service agreements, a memorandum of understanding and the Premier’s correspondence.
  • In her Decision, the Information Commissioner: considered the Cabinet Office’s failure to issue an internal review decision within 6-weeks of the Requester asking for one.
  • What was the outcome: Commissioner Gutierrez found that the Cabinet Office did not issue an internal review decision to the Requester within the 6-week timeline set out in the PATI Act and ordered the Cabinet Office to do so.

Decisions 49/2023 and 50/2023

  • What was requested: records of the Premier’s correspondence related to Gencom, its subsidiaries (in particular WestEnd Properties Limited), Gencom’s founder and Gencom’s representative. The Commissioner’s Decisions dealt with the Cabinet Office’s search on the same record topic for two different timeframes.
  • In her Decisions, the Information Commissioner:
    • considered records of the Premier’s correspondence for the timeframe from 1 March 2021 and 5 October 2021 (Decision 49/2023) and for the period between 1 March 2020 and 1 March 2021 (Decision 50/2023);
    • affirmed in Decision 49/2023, that the Cabinet Office was justified to withhold access to parts of the records because their disclosure could reasonably be expected to prejudice Gencom’s negotiations with lenders and the Bermuda Government; but she did not find that the Cabinet Office could deny access to the remaining parts of the records because they consisted only of administrative information; and
    • found in both Decisions that the Cabinet Office had not conducted a reasonable search for responsive records because she was unable to confirm the scope of the search conducted by the Cabinet Office.
  • What was the outcome: in Decision 49/2023, Commissioner Gutierrez ordered the Cabinet Office to (1) disclose the parts of the records consisting of administrative information; and (2) conduct a reasonable search and issue a new initial decision on any newly identified records. In Decision 50/2023, Commissioner Gutierrez also ordered the Cabinet Office to conduct a reasonable search and issue a new initial decision on any newly identified records.

Four decisions involved PATI requests submitted to the Department of Child & Family Services.

Decision 44/2023

  • What was requested: records about Glen Mills Schools, an overseas child residential facility.
  • In her Decision, the Information Commissioner:
    • found that the Department was justified in deciding that the Children Act prohibited some requested records from being disclosed publicly; and
    • confirmed that the Department had conducted a reasonable search for the other requested records before deciding they did not exist.
  • What was the outcome: Commissioner Gutierrez affirmed the Department’s decision.

Decision 45/2023

  • What was requested: general data and records related to overseas residential placements in the prior five years.
  • In her Decision, the Information Commissioner: found that the Department was justified in deciding that the records either did not exist, were in the public domain, or could not be publicly disclosed due to the Children Act’s secrecy provision.
  • What was the outcome: Commissioner Gutierrez affirmed the Department’s decision.

Decision 51/2023

  • What was requested: records about any disciplinary action taken against a senior officer of the Department.
  • In her Decision, the Information Commissioner:
    • did not address the Department’s reliance on the exemption for the deliberations of a public authority as she found that all of the records consisted of personal information; and
    • confirmed that disclosure of the records was not in the public interest under the PATI Act because it would be unfair to the senior officer, who had a reasonable expectation of privacy with regard to personnel matters, and there was no suggestion of irregularity or maladministration in the disciplinary process followed by the Department.
  • What was the outcome: Commissioner Gutierrez varied the Department’s decision because she found that the Department was justified in refusing access to the records under the exemption for personal information.

Decision 54/2023

  • What was requested: records relating to the Director’s administrative leave, as well as other records.
  • In her Decision, the Information Commissioner:
    • upheld the Department’s decision to deny parts of the PATI request on the basis that the Children Act prohibited public disclosure of the requested records;
    • for the parts of the records that contained personal information, found that the public interest test required disclosure of certain parts of the records where they did not touch upon the nature of the allegations made against the Director; and
    • found that, as the executive officer with outward facing accountability for a department that services one of Bermuda’s most vulnerable populations, the Director should reasonably expect to be accountable to the public and that disclosure of parts of the records was necessary to further greater public understanding of the steps taken by the Department in response to complaints made in relation to the performance of the Director’s duties.
  • What was the outcome: Commissioner Gutierrez ordered the Department to disclose the non-exempt parts of the records.

Three additional Decisions were issued in December.

Decision 52/2023, Department of Environment and Natural Resources

  • What was requested: records on a fishing vessel with a longline fishing licence and the vessel’s commercial fishing activities.
  • In her Decision, the Information Commissioner:
    • upheld the Department’s decision to deny parts of the PATI request on the basis that certain requested records did not exist;
    • confirmed that the Department had appropriately withheld records, or parts of records, as their disclosure would have had an adverse effect on the commercial interests of the vessel’s owner; and
    • although accepting that there was a public interest in promoting greater understanding of the Government’s policies and practices regarding the regulation of the fishing industry and the protection of the environment, found that in this case, that public interest was outweighed by the public interest in protecting commercial information and ensuring that the Department could carry out its regulatory work effectively.
  • What was the outcome: Commissioner Gutierrez varied the Department’s decision because she found that the Department was justified in refusing access to the records under the exemption for commercial interests and affirmed the administrative denial because the records did not exist.

Decision 53/2023, Bermuda Tourism Authority

  • What was requested: records regarding the BTA Board of Directors and a former member, including board meeting minutes, correspondence, payments made to board members and other records.
  • In her Decision, the Information Commissioner:
    • was satisfied that the BTA had conducted a reasonable search for records during the course of the review and therefore was justified in denying access to certain records on the basis that they did not exist or could not be found; and
    • noted that the BTA issued a new initial decision to the Applicant regarding the BTA’s meeting minutes, disclosing redacted versions of the records, during this review.
  • What was the outcome: Commissioner Gutierrez varied the Department’s decision and affirmed the Department’s administrative denial because the records did not exist.

Decision 55/2023, Ministry of Education Headquarters

  • What was requested: the West End Warriors for Legacy (a community group who waived their right to anonymity under the PATI Act) requested access to records in support of the Minister of Education’s decision to close the West End Primary School and to retain the Somerset Primary School as the selected site for Sandys parish. This proposal was announced publicly in July 2021.
  • In her Decision, the Information Commissioner:
    • confirmed that the Ministry Headquarters had appropriately denied parts of the PATI request;
    • was not satisfied that a reasonable search had been conducted for other records, stating that the Ministry Headquarters did not address the existence of certain records in their decision to the Applicant or submissions to her, which the Information Commissioner expected to either have existed or been directly referred to as records no longer found or available, based on the Ministry Headquarters’ public information.
  • What was the outcome: Commissioner Gutierrez ordered the Ministry Headquarters to conduct a reasonable search and issue a new initial decision on any newly located records.

As at 31 December 2023, the Information Commissioner had:

Total applications: 300

Pending investigations: 36

Applications pending validation: 5

Closed reviews – decided: 187

Closed applications – resolved (settled): 33

Closed applications – invalid: 32

Closed applications – abandoned: 7

Decisions pending compliance: 12

No Information Commissioner’s Decision (or other request) was subject to judicial review as at 31 December 2023.