February 2024 Decisions Roundup

In February 2024, the Information Commissioner received 8 new applications, closed 8 cases (2 withdraws, 6 decisions). As of 29 February 2024, public authorities’ compliance was pending for 14 decisions.

Decision 02/2024, Corporation of Hamilton

What was requested: records relating to Savvy Entertainment along with any communications between the Corporation’s employees and Savvy Entertainment.

In her Decision, the Information Commissioner: considered Corporation of Hamilton’s failure to issue an internal review decision within 6-weeks of the Applicant asking for one.

What was the outcome: the Information Commissioner found that Corporation of Hamilton did not issue an internal review decision to the Applicant within the 6-week timeline set out in the PATI Act. However, the Corporation issued an internal review decision during the Information Commissioner’s independent review. As a result, the Information Commissioner did not require the Corporation to take any further action in respect to this Decision. The Applicant may now decide whether they want the Information Commissioner to conduct an independent review of the internal review decision issued to them.

Decision 03/2024, Cabinet Office

What was requested: records about fintech and the Fintech Unit and Office. Specifically, the PATI request sought a list of all memorandum of understanding signed between the Government and digital asset businesses (DABs) or fintech businesses (including the date they were signed on), any record or log that the Fintech Unit keeps of the number of jobs in Bermuda’s fintech sector (from whenever the log or record was first begun), Fintech Unit’s list of fintech or DAB companies with a physical presence and staff on the island, and details of the staffing and budget of the Cabinet Office’s Fintech Office since its formation.

In her Decision, the Information Commissioner: Affirmed that the Cabinet Office was justified in transferring the parts of the request to another public authority that relates to records or log of Bermuda’s fintech sector related jobs and the Fintech Unit’s list of fintech or DAB companies with a physical presence and staff on the island. However, she confirmed that the Cabinet Office was not justified in its decision to transfer records relating to all memorandum of understanding and the Fintech Office’s staffing and budget. This Decision offers a reminder to public authorities that before they automatically transfer a request to another public authority, they must first have a reasonable basis for confirming that they do not hold responsive records.

What was the outcome: As a result, the Information Commissioner has ordered the Cabinet Office to conduct a reasonable search for potential responsive records and issue the Applicant a new initial decision on those records.

Decision 04/2024, Cabinet Office

What was requested: communications related to the cybersecurity incident which affected the Government’s information technology system in September 2023.

In her Decision, the Information Commissioner: considered Cabinet Office’s failure to issue an internal review decision within 6-weeks of the Applicant asking for one.

What was the outcome: the Information Commissioner found that the Cabinet Office did not issue an internal review decision to the Applicant within the 6-week timeline set out in the PATI Act and has ordered the Cabinet Office to do so.

Decision 05/2024, Cabinet Office

What was requested: records relating to the Commission of Inquiry into Historic Land Loss in Bermuda, which was appointed by the Premier in October 2019. The Applicant was specifically seeking records related to the resignation of the former Senior Counsel to the Commission in October 2020, prior to the conclusion of the Commission.

In her Decision, the Information Commissioner: upheld the Cabinet Office’s decision that most of the records were exempt because they were communications protected by legal advice privilege. With regard to one record, however, the Information Commissioner found that only part of it was protected by legal professional privilege. She found that the remainder of the record contained personal information but that the public interest required disclosure of part of that record.

The Information Commissioner also commented on PATI requests seeking ‘any and all correspondence’ and the importance of consultation between public authorities and requesters, as the number of records in review was substantially reduced once it became clear to the public authority the specific subject matter of records being sought by the Applicant.

What was the outcome: For the one responsive record identified, the Information Commissioner ordered the Cabinet Office to disclose to the Applicant the part of the record that favors public interest.

Decision 06/2024, Ministry of Youth, Social Development and Seniors

What was requested: records about the litigation guardian panel as announced in 2020. Specifically, the Applicant requested several records including correspondence relating to the setting-up of the litigation guardian panel, contracts for the litigation guardian panel members, training information of panel members, payment details of two panel members and finally, communications relating to panel members who were public officers and how they could manage their panel work alongside their full-time roles. The Ministry Headquarters received this request under a transfer from another public authority. In its decision, Ministry Headquarter disclosed a record with some personal information removed and administratively denied access to the remaining records.

In her Decision, the Information Commissioner: affirmed the Ministry Headquarters’ decision to administratively deny the PATI request as additional responsive records could not be located after all reasonable steps were taken to locate additional records.

What was the outcome: The Information Commissioner ordered the Ministry Headquarters to disclose all 5 litigation guardian contracts with the names of litigation guardians and fee information left unredacted.

Decision 07/2024, Bermuda Police Service

What was requested: records relating to a legal advice report that the Assistant Commissioner of Police had sought in the context of a misconduct investigation that he was conducting.

In her Decision, the Information Commissioner: considered BPS’s refusal of access to the record on the basis that it contained priviledged legal advise, which is exempt under the PATI Act.

What was the outcome: the Information Commissioner affirmed that the BPS was justified in withholding access to the record.

Decision 08/2024, Bermuda Police Service

What was requested: records relating to non-disclosure agreements related to the execution of a search warrant.

In her Decision, the Information Commissioner: considered BPS’s failure to issue an internal review decision within 6-weeks of the Applicant asking for one.

What was the outcome: the Information Commissioner found that BPS did not issue an internal review decision to the Applicant within the 6-week timeline set out in the PATI Act. However, BPS issued an internal review decision during the Information Commissioner’s independent review. As a result, the Information Commissioner did not require BPS to take any further action in respect to this Decision. The Applicant may now decide whether they want the Information Commissioner to conduct an independent review of the internal review decision issued to them.

Total applications: 313

Pending investigations: 45

Applications pending validation: 0

Closed reviews – decided: 193

Closed applications – resolved (settled): 35

Closed applications – invalid: 33

Closed applications – abandoned: 7

Decisions pending compliance: 14

No Information Commissioner’s Decision (or other request) was subject to judicial review as at 29 February 2024.