Question: What power does the Information Commissioner actually have? If the Information Commissioner decides that a public authority should disclose certain records, what actually happens next?
Answer: The mandate of the Information Commissioner is to promote public access to public information in Bermuda. One way she achieves this is by providing guidance for, and oversight of, public authorities’ compliance with the PATI Act. When the Information Commissioner completes her independent review of how a public authority handled a PATI request, she issues a decision. Often times some of those decisions include an order. What makes the Information Commissioner’s decisions “enforceable” is that they are legally binding.
This means that if a public authority does not comply with the Information Commissioner’s decision and the accompanying order, it could be found in contempt of court if the Information Commission seeks enforcement. This means that a decision by the Information Commissioner can be enforced in the same manner as an order of the Supreme Court. Section 48 of the PATI Act speaks to the powers the Information Commissioner has when enforcing her decisions.
Encouragingly, to date, public authorities either have complied or are working towards compliance with all the decisions and orders issued by the Information Commissioner. This means that if the Information Commissioner has ordered disclosure of records, those records have been publicly disclosed or are in the process of being disclosed. If the Applicant requested access to their own personal records, then the records were disclosed to the Applicant or are in the process of being disclosed to the Applicant. Public officers who have worked diligently to uphold PATI rights should be commended for the role that they play for an outcome such as this.
If a member of the public is interested in knowing what records have been disclosed under the PATI Act, they can simply ask to see a public authority’s PATI request log. A PATI request does not need to be made to access a public authority’s PATI request log. If the public authority granted access to the requested records, any member of the public can ask for copies of those records because a disclosure under the PATI Act is a public disclosure to the world, unless the disclosed records were for a requester’s personal records.