Taking a closer look at the independence of the ICO

What does it mean for the ICO to be an independent office, and what does ‘independence’ look like in practice?

The ICO is a unique public office that supports the Information Commissioner’s mandate to protect every Bermudian and resident’s right to ask Bermuda’s public authorities for public records. The Information Commissioner fulfills her mandate by exercising independent decision making. This means that the Information Commissioner performs her work independently from the direction or control of any other authority, including Ministers, political parties or other individuals. As the office supporting the Information Commissioner, the ICO is not a Government department and does not fall under any ministry. What makes the ICO unique is the fact that it is its own entity as a public office.

 A large part of the ICO’s work is carrying out independent reviews of public authorities’ decisions on PATI requests when PATI requesters exercise their right to ask the ICO for one. To clarify, two types of reviews might happen as a result of a member of the public making a PATI request to a public authority: an internal review, which is done by the head of the public authority; and an independent review, which is done by the Information Commissioner. The Information Commissioner’s reviews are independent because they are conducted external to the public authority that handled the PATI request.

 Not only do the Information Commissioner and her office actually have to be independent, they must also be seen as independent. The investigators assisting the Information Commissioner with reviews are expected to refrain from making public comments that might lead to the independence of the ICO being questioned. The independent nature of the Information Commissioner’s reviews strengthens the public and public authorities’ confidence in the ICO’s review process.

 As with access to information laws in other jurisdictions, the PATI Act is designed to give the public the right to access information held by public authorities to the greatest extent possible. However, the Information Commissioner and her office do not take on the role of an advocate for any individual PATI requester during a review.

 When the Information Commissioner is conducting her independent reviews, her loyalty and the loyalty of the ICO, is to Information Commissioner’s mandate under the PATI Act to promote public access to information within the boundaries set out in the law and upholding PATI requesters’ rights.

When applying the PATI Act to decisions on PATI requests, the Information Commissioner and her office do not practice favouritism toward public authorities or PATI requesters.

 Even as an independent public office, the ICO is subject to external accountability by other independent good governance entities. The Information Commissioner’s decisions can be challenged before another independent institution, the Courts, by a judicial review. The ICO’s accounts are also subject to an independent audit by the Auditor General. Finally, the Information Commissioner is also accountable to the public through the tabling of an Annual Report in Parliament.