Exemptions

 

The default rule under the PATI Act is that records are subject to disclosure. But the PATI Act recognizes that there are valid reasons for some kinds of information to be kept confidential. This is because a real and substantial risk exists that disclosure could cause a specific type of harm. For example, it could cause harm to an individual’s safety, damage to commercial interests or damage to a public authority’s internal deliberations or operations. 

 

A public authority must release the requested record unless it falls within one of these valid reasons, called “exemptions.” 

 

The PATI Act includes 16 exemptions for specific categories of information whose disclosure could cause harm. For 12 of these exemptions, even if the public authority finds that the exemption applies, it must then apply the "public interest test" to see if the record should be disclosed anyway.  

 

Applying the public interest test, the public authority considers whether the benefit to the public interest in disclosing the information outweighs the harm to the public interest that would be caused by disclosure. If the benefit outweighs the harm, the record will still be released despite the exemption. Factors for weighing the public interest are described in section 2 of the Public Access to Information Regulations 2014.

 

If the public authority decides that the record cannot be released it must tell you this and explain which exemption it is applying. If relevant, the public authority must also tell you why the harm to the public interest caused by disclosure outweighs the benefit.

 

Part 4 of the PATI Act sets out the 16 exemptions from disclosure for records involving:

 

  • Health or safety of an individual;

 

  • Personal information, except under certain circumstances set out in the PATI Act;

 

  • Commercial information such as trade secrets or contract negotiations;

 

  • Information received in confidence, as defined in the PATI Act;

 

  • International Tax Agreement records, with limited exceptions for certain statistical, technical or scientific materials (the public interest test does not apply);

 

  • Cabinet documents, including official records of deliberations or decisions, with limited exceptions for certain statistical, technical or scientific materials (the public interest test does not apply);

 

  • Ministerial responsibility, which prevents disclosure of records when it would undermine the free and frank discussion and advice between Ministers and between Ministers and public officers;

 

  • Deliberations of public authorities, when disclosure would undermine the free and frank discussion and advice during public authorities’ deliberations, with limited exceptions for information that is factual or statistical; results from an investigation or analysis of the performance, efficiency, or effectiveness of a public authority; is in the nature of a report, study or analysis of a scientific or technical expert; or in the nature of the reasons a public authority made a particular decision;

 

  • Operations of public authorities, when disclosure would undermine the effectiveness of public authorities’ “operations” such as the administration of tests or exams or their position in negotiations;

 

  • Financial and economic interests of Bermuda, when disclosure would harm our country’s financial and economic interests;

 

  • National security, defence and international relations records whose disclosure could reasonably be expected to prejudice these interests, or which contain information communicated in confidence by a State or organization of States;

 

  • Governor’s responsibilities and communications with the United Kingdom;

 

  • Law enforcement records, when disclosure would prejudice law enforcement efforts or endanger a person’s safety, with limited exceptions for information that would reveal that the scope of a law enforcement activity is unauthorized by law; the general outline of the structure of a law enforcement program; a report on the success of a law enforcement program; and certain law enforcement reports, if disclosure of any of these records would be in the public interest;

 

  • Legal professional privilege to which the public interest test does apply, except that records protected by legal professional privilege held by the Attorney General or the Director of Public Prosecutions are not subject to disclosure of any kind, to the extent that the PATI Act is applicable to these records at all;

 

  • Records withheld because disclosure would be in contempt of court or a breach of parliamentary privilege (public interest test does not apply); and

 

  • Disclosure is prohibited by other legislation (the public interest test does not apply).

 

 

Expiration of Exemptions

 

For 14 of the exemptions, the exemption will no longer apply after 30 years from the date the record was created. 

 

This provision does not apply to records exempt (1) because they contain personal information or (2) because their disclosure is prohibited by other legislation.  For the remaining exemptions list above, the exemption's protection will expire 30 years after the record was created and the record will then be available for public access.

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The information on this website is for information only and should not be considered as constituting legal advice.