September Decisions Roundup

In September 2023, the Information Commissioner issued three decisions and closed one case as invalid.

Decision 32/2023, Ministry of Economy and Labour Headquarters

In this Decision, the Applicant had made a Public Access to Information request for non-anonymised public decisions of the Employment and Labour Relations Tribunal. A key function of the Tribunal is to hear and determine labour complaints and disputes, and this includes issuing its decisions.

The Ministry Headquarters had decided the PATI Act did not apply to the requested records by virtue of section 4(1)(a) of the PATI Act. In Decision 32/2023, the Commissioner has concluded that the Ministry Headquarters’ refusal was justified because the PATI Act does not apply to the Tribunal’s records related to its quasi-judicial functions. Issuing decisions fell squarely within the Tribunal’s quasi-judicial functions, and the records did not relate to the Tribunal’s general administration. It is the general administration records of a public authority that will always be subject to the PATI Act. As a result, the Commissioner did not require the Ministry Headquarters to take further action.

Decision 33/2023, Bermuda Police Service

This Decision considered the BPS’s failure to issue a timely internal review decision on a PATI request for records of vendor payments related to specific investigations. The Commissioner ordered the BPS to issue an internal review decision on or before 10 October 2023.

Decision 34/2023, Bermuda Police Service

In this Decision, the Applicant had made a PATI request for emails amongst the BPS’s senior leaders about their probation, but the BPS had decided not to release them. During the Commissioner’s review, the BPS changed its position; it released some records and continued to withhold others but for a different reason. The BPS withheld the records under section 29(1) because it concluded that revealing the records would undermine its deliberations, or decision making, about extending the Applicant’s probation and investigation misconduct allegations.

In Decision 34/2023, Commissioner Gutierrez has found that the BPS’s refusal was not justified. Disclosing the records could not reasonably have been expected to undermine the BPS’s decision making about whether to extend the Applicant’s probation and what process was appropriate for investigating misconduct allegations. The Commissioner reasoned that some records documented the final reasons for the outcomes, not the back-and-forth of the BPS’s decision making. What remained were either routine communications or did not involve any deliberation. The Commissioner also has found that the PATI Act did not apply to parts of one record by virtue of section 4(1)(b)(vi), because it was created or obtained by the Attorney General’s Chambers in the course of carrying out its functions as the BPS’s legal advisor.

As a result, the BPS was ordered to disclose additional records, with certain personal information withheld, to the Applicant by 1 November 2023. The Commissioner emphasised that the required disclosure was of the Applicant’s own personal information to the Applicant themselves and was not a disclosure to the world-at-large.

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