Auditor General was repeatedly denied access to information on civil law suit
Auditor General Heather Jacobs Matthews spent months trying to discover who in Government signed off on payments to fund a private legal action for two Cabinet Ministers.
But she was unable to find out the answer, along with other details about the civil suit, after being denied access to information by the Ministry of Works and the Attorney Generals Chambers.
Premier Paula Cox insists Mrs Matthews was furnished with all information to which she is entitled in relation to the funding of this matter.
But Mrs Matthews views it differently. In her Special Report on the Misuse of Public Funds, released on Thursday, she states: Restrictions on our access to information violate the provisions of the Audit Act 1990. The Act provides that it is a criminal offence to fail or refuse to supply any explanation, information or assistance which I may reasonably require for the performance of my functions.
The frequency of denial of my requests suggests that there is either a fundamental misunderstanding of the role of the Auditor General or there is something to hide.
The Auditor began seeking information on the payments to a Canadian law firm in May 2011.
The legal expenses, amounting to more than $30,000, were in relation to an action which listed former Premier Ewart Brown and Works Minister Derrick Burgess as plaintiffs.
The suit, which charged Canadian architect Sam Spagnulo and Bermuda Governments Chief Architect Lawrence Brady, who is the brother-in-law of Royal Gazette editor Bill Zuill, with defamation and conspiracy, sought $4 million in damages.
Mrs Matthews explains that her office considered the expenditure to be improper and unjustified.
We set out to determine who initiated the litigation and who authorised payment of a personal matter out of public funds, she states.
Getting the information should not have been a problem, according to the independent Auditor. The 1990 Act entitles her to request that she be supplied with any explanation, information or assistance which she might reasonably require to do her job.
In May 2011, the permanent secretary at the Works Ministry confirmed the law firm had been given the green light to pursue the legal case on behalf of Dr Brown and Mr Burgess but refused to say who had given the go-ahead.
In July, Mrs Matthews began requesting information from the Attorney Generals Chambers, which approved the agreement with the law firm on behalf of Government.
At the time the agreement was signed, in June 2010, Senator Kim Wilson was Attorney General. By July 2011, Michael Scott was Attorney General. He remained in the role until last November, when Sen Wilson took over again.
Mrs Matthews details in her report how the Attorney Generals Chambers refused to provide information to her between July and August last year on the grounds that it was legally privileged.
The AGs external legal advisers agreed with the Attorney General that the Audit Act does not override any claim for legal professional privilege.
Legal advice obtained by the Auditor stated that such legal privilege applied only to those outside the parameters of the client.
The advice was that since the client in the civil case was the Bermuda Government and Mrs Matthews was part of that Government, the information should be as accessible to her as to any other constituent part of Government.
In her report, the Auditor states: In my opinion, to cover-up an abuse of public funds behind the cloak of legal privilege as opined by the Attorney General is unacceptable and violates principles of good governance and transparency.
In this case, where the fundamental financial rules which govern all civil servants have been blatantly disregarded at the highest levels in Government, appropriate sanctions should be applied, including appearance before the Public Accounts Committee.
Mr Scott, who is now Government Estates Minister, told VSB News last night: Im appalled that a public officer of her responsibility does not appreciate legal privilege.
We did not hide behind legal privilege. We simply declared that those documents were the subject of legal privilege.
He said the principle of legal privilege was sacrosanct and accused the Auditor of threatening the Acting Solicitor General and a consultant to the Attorney Generals Chambers under the Audit Act.
A letter to Mrs Matthews in response to her report from Ministry of Justice permanent secretary Kathy Lightbourne-Simmons suggests much the same thing.
Ms Lightbourne-Simmons wrote on December 19, 2011 that Government regretted that the Auditor had rejected the legal privilege argument and regretted that she had indicated she intended to invoke the provisions of the Audit Act in relation to the fines and imprisonment which could be imposed for failing to provide her with information.
Mr Scott claimed yesterday that in threatening them under the Act, Mrs Matthews completely paralysed their capacity as civil servants to continue to advise.
He said he believed her actions were unprecedented, adding: I was incredulous about the approach of the Auditor General. I didnt think that it assisted the process. We are all one Government and I had greater expectations.
He declined to elaborate further when contacted by The Royal Gazette.
Mrs Matthews says in her report she has decided not to pursue the denial of access to information through the courts to avoid a lengthy and costly legal battle at public expense.
I believe it best to leave the matter in the court of public opinion and to issue this report to Parliament and to the public.
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