Thursday’s question and answer session between information commissioner Gitanjali Gutierrez and readers of The Royal Gazette. Here are all the questions and answers

Question: Which has greater precedence in this era of Pati, the “right to know” or the “right to privacy”?

Answer: The Pati Act strikes a balance between the right to know and personal privacy. One of the reasons that a public authority can withhold information is if it includes “personal information” and this is defined in the Act. The issues probably come closest when you look at the definition of “personal information”.

Q: But if there is an individual doing public work, a Pati request about this would necessarily contain personal information?

A: If you work for a public authority, or contract or are a vendor with them, you are receiving public money ... so there is less privacy for those individuals than for individuals working or contracting in the private sector.

It would contain what we think of as “personal information” in a general sense . . but the Pati Act has a specific definition of “personal information” that excludes some information about people who work or contract with public authorities. This is because the public has an interest in knowing how public money is spent.

Q: In that case, is the “personal information” defence against Pati requests always going to be a non-starter for those receiving public money?

A: It is called an “exemption” in the Pati Act, not a defence. The exemptions are the only reasons that a public authority can withhold information.

For the personal information exemption, if someone makes a request and the record contains personal information (about someone’s health, for example) that person is considered a “third party” under the Pati Act. If the public authority decides it wants to release the information, then the third party receives notice and a right to ask for an appeal (an “internal review’) by the head of the authority of that decision . . and ultimately to appeal (see an independent review) by the Information Commissioner. Also, if a public authority decides that the personal information exemptions applies, it must then go on to a second step and apply the “public interest test”. This requires the PA (public authority) to balance the public interest in disclosing the record against the public interest in keeping it withheld. The “public interest” can be thought of as the “public good” — not just what the public finds curious or interesting.

Q: If a requester asks to see personal information on a person, would their identity be given to the person in question?

A: No, the identity of a requester asking for a third party’s information will not be given to the third party.

Q: Does the “public good” have a rigorous definition or is it a judgement call?

A: The public good doesn’t have a precise, confined definition but there are parameters. The Pati regulations identify some public interest factors — it is not an exclusive list but gives examples. It includes records that would increase accountability, reveal maladministration, improve the effectiveness of public services, etc.

The biggest distinguishing characteristics are that the disclosure would serve the “public” good, not one person’s “private” good and that it isn’t just interesting or feeds curiosity but weighs in on the public good. This is something you can see in decisions from Information Commissioners and courts internationally.

Q: What role does the Governor have as relates to Pati? Given our foreign policy and defence is largely administrated by the UK, does this mean that Bermuda is subject to the UK Official Secrets act? Can the Governor shut down Pati requests that may conflict with this? Following on from that, do Bermuda Regiment documents and statistics fall under Pati?

A: Let me see if I understand your question. The Governor is a public authority, like all of the other public authorities. There is an exemption specifically for the “Governor’s responsibilities and communications with the UK”. That would be the extent of the specific provisions for the Governor. There is also an exemption for records that must be withheld under other Bermuda laws.

For the Regiment ... we are checking the information statements right now to confirm where Regiment may be included. Okay, so when you want to know if a unit or office is subject to the Pati Act, look at the information statements. You can access them on the Bermuda Government portal or our website, www.ico.bm. The information statements tell you each office’s responsibilities, describe the records, have organisational charts, etc. The one for the Governor includes the Regiment as being under his remit, so you could submit a request to Government House for those records.

RG: The Governor’s statement lists exemptions, actually, including for national security — Bermuda Regiment aide memoirs, for example.

A: I would always suggest, though, making the request because the national security exemption is subject to the “public interest” test. So, on the information statements, some public authorities have stated that records will be exempt under X, Y or Z exemptions but many of these exemptions are subject to the public interest — and this is a very context-specific test.

Q: My line of thinking is that I wish to see statistics from the Regiment that relate to conscription and conscientious objection. I am anticipating them denying it on the basis of national security or something.

A: You can’t know in advance how it will come out until you see an actual request and look at the specific public interest factors it raises. You won’t know how the request will be addressed unless you submit it, especially because of the public interest test.

Q: Is there any exemption that is not subject to the public interest test?

A: Yes, there are a few that are not subject to the public interest test. The exemption for International Tax Agreements records but statistical, technical and scientific materials related to those agreements can still be released. Cabinet documents are not subject to the public interest test — and these exemptions, by the way, are called “absolute” exemptions. Again, though, statistical, technical and scientific material in Cabinet records can be disclosed.

The other two are records whose disclosure would be contempt of court or a breach of parliamentary privilege and when disclosure is prohibited by other existing legislation. Other than these, when an exemption applies, it is subject to the public interest test.

Q: If a legal case is ongoing — nothing could be released in relation to it under Pati?

A: That is generally correct — and there is case law and information commissioner decisions from other countries on this. Other Bermuda laws may prohibit the disclosure. There is also an exemption for legal professional privilege that is quite strong because the public has a strong interest in safeguarding confidential communications with legal counsel and so on.

Q: What is the estimated period that a person can receive information under Pati once it is requested?

A: The time for when you receive the record is going to vary. First and foremost, the Pati Act encourages the public authority to make as much information “routinely available” as possible. The public owns the records. So, first question is “Is the record routinely available — can you just have a copy or get access to it without a Pati request”. If you do need to file a Pati request, the time for access varies. The public authority has six weeks to give you an initial response. We have encouraged them to respond as quickly as possible but that is the outer limit.

If a public authority decides that it can give you the entire record, we are encouraging them to go ahead and make the record “routinely available” as soon as possible. Otherwise, for a Pati request, the public authority may wait until the time for the appeal has expired to give you access. It is an anomaly in the Act.

This would mean that a public authority it ready to release a record entirely, but waits six weeks before you can receive it.

I should add, that for a contested record that goes through all of the appeals and doesn’t get released until an decision from the Information Commissioner . . it could take months. this is typical internationally with information access laws.

Q: I see, thank you. I have actually received a document that was “routinely available” without having to go through an official Pati request. Hopefully this applies to the majority of the documents requested.

A: That’s great! We hope to see public authorities and requesters working together to make that happen as much as possible.

Q: Are there costs associated with the requests?

A: There is no cost to file a request. If you are granted access to a record, you may be charged a few for reproduction of the record — copying, etc. The fees are in the Government Fees regulations and are typical of the fees usually charged.

Q: You have undertaken some reviews/appeals. Have they been conducted as ‘live hearings’ or have you dealt with it ‘on paper’?

A: Like many information commissioners’ offices, we will usually conduct our hearings “on paper” for a couple of reasons. We are finalising our reviews (appeals) policy and procedures and will publish so everyone can see how our process works. One of the reasons it is written and a rather formal, is because our decisions are subject to judicial review. Either the requester or the public authority can ask for judicial review of our decisions, so we want a careful, thorough, well-documented record. In most cases, a written record will be most appropriate. I should also add that we strive to settle or resolve cases as much as possible. This can happen all the way up to right before a decision is issued. Our office has broad statutory authority to conduct appeals, though, and in some cases, we might visit a public authority to have them walk us through their search process, or some other procedure that helps complete the record.

Q: Is there any situation when you would hold a public hearing of an appeal? Can an appealer request that?

A: The Act requires that our office observe confidentiality with the appeals. We have the discretion to have a “live” hearing, and to allow parties to be present, but it would be a strong variation from routine practice. For the public, the review must be conducted in private, so the public would not be involved.

Q: Can the written information and verbal information used to make a decision by the Government Minister involved be made public through Pati?

A: Well, the verbal information would need to be “recorded” so you would be looking for meeting notes, etc. For the written information, it might fall under the Cabinet document exemption if it was formally submitted to Cabinet but the statistical, technical records would be disclosable — and there is a reason for this distinction. The Pati Act wants the Cabinet to make the best decision possible — this means receiving conflicting opinions, arguments, information.

All of that comes into the Cabinet, the decision makers, and they make a decision. If all of those opinions and so on were disclosed, it could mean that in the future, advisers would be less frank in the advice to the Cabinet.

The advisers might fear that it would be made public that they recommended a path that wasn’t taken. We don’t want to inhibit the exchange of views. But you can get the statistical, technical information because this doesn’t touch upon the opinions. It allows experts outside of Cabinet to look at the raw facts and also provide advice or assess the Cabinet decision for themselves. That leads to more input and better decisions.

Q: What happens if I make a request and they tell me I have to go to another government department for the information?

A: The public authorities have an obligation to assist a requester. If you go to the wrong one, two things could happen. The public authority could take your request and then refer it to the correct public authority for you. if you don’t have a car or bike and the second public authority is on the other side of the island, you could ask for this kind of assistance. If the public authorities are close by, the first one may ask you to take your request to the correct office.

Main point — the process should be user-friendly for your circumstances.

Q: Who do I contact if I don’t know exactly which records to request but I know what information I am looking for? Can your office help?

Q: How specific do Pati requests have to be? For instance, if I were to make a Pati request for “all information” showing how, for example, a contract was awarded to Company B. Would the governmental body be obliged to seek out all this information, or should I specify “e-mails, meeting notes” etc?

A: The information statements are a good place to start to figure out what records to ask for. Yes, our office answers inquiries about general requests (so we could help you understand what records are held by a public authority) We can’t give advice on specific requests because we might see them come to us on an appeal.

Talking with the information officer at the public authority can be helpful, too. You can describe the type of information you want and he or she can help you figure out what records it might be in. Then you can go back and write your request (or maybe that record is routinely available).

Pati requests need to be specific enough for the public authority to figure out what you are asking for. it is helpful for them if you can be specific (e-mails, reports, and so on). If you request is too general or too broad, they will work with you on clarifying your request so it can be answered.

Q: Given what is going on in Australia as relates to FOI — the information office is under attack through lack of funding and other problems — is your office vulnerable to the same problems? Are you well protected against a hypothetical party in power that may seek to cripple your office?

A: Ah, yes, Australia . . there has been a great deal of concern about the defunding and restructuring of that office. ICOs, including ours, are not subject to ministerial control or influence — we operate independently. But funding becomes a point of contention. The risks to the funding of the UK ICO is receiving a great deal of public attention and pressure. Ultimately, funding is the political control over an office — and that is a product of the interaction between the voting public and the elected officials.

I would hope that we have worked long and hard for this right, and that there is some recognition, especially, that the Pati Act came into being through multiple governments. It hasn’t been a product of just one segment of our community.

We all should value the right — and safeguard it.

Q: What happens if a Pati request is made about yourself or your office? Who would assume your role?

A: I have raised this question and look to the practice of other offices. In Canada, an “ad hoc” Information Commissioner is appointed is there is a contentious request, which has happened a few times. My initial thoughts are that if we had a contentious request, we would need a decision maker outside of our office.

Q: When a request for information is submitted who is able to know about that request and who submitted it? How secure are the details of a request from members of Government or the civil service who may feel threatened by the release of information?

A: The Act requires that the public authority keep the requester’s identity confidential except for those people who need to know the name to handle the request (so if the record is filed under the person’s name or I am the person who is responsible for communicating with the requester). I think after the concerns about confidentiality earlier, that public authorities are now very aware of this responsibility

Q: Is there a limit on how far back requests for information can go? 2005, 2000, 1990, etc?

A: No limit on historical records (maybe some practical ones).

Q: What’s to stop a governmental body saying that they are basically crap and terribly sorry, there is no information on record about your Pati request? Does your office have auditors or investigators to stop this kind of behaviour?

A: In that circumstance, a requester could ask for an internal appeal of the search- was it reasonable? And then the requester could appeal to our office. Yes, we would assess the quality of the search and whether there may have been other records that would provide the information the requester was seeking that the public authority should have suggested. If the problem arose frequently, we could turn to a more systemic and potentially escalating intervention, if necessary.

Q: How has the adoption rate for Pati been compared to other countries? Have the number of information requests been comparable to elsewhere?

A: Internationally, our law is robust and strong in terms of its provisions, scope and enforcement. There are always improvements to be made, but we should be proud of where we are starting. Some countries started with an information commissioner and training, public education programs, etc, for a year or two and then the right goes into effect. By then, there are a lot of people who understand it and are ready to make requests. But it is rarely an overwhelming flood of requests in the beginning. So, taking all of that into consideration, we are off to a good start. The initial requests are making everything real for the public authorities and the public. I would hope we continue to see an steady increase in the use of the Act as people learn more about it.

Q: Is there a “trick” to phrasing Pati requests that would increase the likelihood of them being granted without having to go through the appeals process? An obvious example would be “try not to request personal identifying information” but are there less obvious ones?

A: The best suggestion the ICO can make is to have a conversation with the information officer [of the relevant public authority] and keep the dialogue open. Working together, you may be able to resolve problems that arise. If you are both working towards fulfilling your request as much as possible, you are likely to understand and be satisfied with the result. The information officer is also well-placed to give advice about what kinds of records the authority holds. “FOI Man” from the UK is a former civil servant who is now an information access advocate. He has some tips on his blog here — www.foiman.com/resources/foiguide1 — that offer some balanced suggestions for making a responsible and effective request. You might find it helpful, too.