Pati #334 and #340
Requests for airport documents refused
Denial down to confidential content
The Ministry of Finance refused to disclose the majority of records on the new airport deal requested by The Royal Gazette under public access to information.
And of the four documents it did share, three were already in the public domain.
One of our requests was for the Bermuda Government’s correspondence with the United Kingdom Government on the agreement with the Canadian Commercial Corporation for it to build a new $250 million terminal.
The Ministry partially denied the request on the grounds that the records were exempt as they included information received in confidence, Cabinet documents and legal professional privilege.
The only correspondence which was disclosed under Pati was the UK’s amended letter of entrustment — a document already released by Government House last July — and a reply from Mr Richards to the Governor, accepting the terms set out by Britain, which had not previously been made public. The amended letter of entrustment added two extra paragraphs requiring the cost of building the airport to be “wholly borne” by CCC and its developers and for the UK and Bermuda to agree on the measures to be taken to address the “deficiencies” identified by audit firm Deloitte in an independent report it produced on the public-private partnership.
Mr Richards wrote to Governor George Fergusson on July 21 to say: “I acknowledge receipt of the contents of the letter and I confirm that the Government of Bermuda accepts the authority delegated therein and, subject to the requirements set out in paragraphs 6 and 7 of the said letter, in relation to such delegation.”
The final two records released by the Ministry were a press release from July last year regarding the entrustment letter and a ministerial statement on the same topic from November 2014.
The Bermuda Government has rejected a freedom of information request for a raft of documents detailing how the new multimillion-dollar airport deal will work.
And it has also refused to release a legal opinion on whether Bermuda needs the approval of the United Kingdom to proceed with the agreement.
The Royal Gazette made two separate requests to the Ministry of Finance under the Public Access to Information Act and got two rejection letters.
We appealed both decisions to financial secretary Anthony Manders, who in turn referred them to the island’s information commissioner Gitanjali Gutierrez.
Ms Gutierrez’s office is considering whether the appeals meet the technical requirements under the Pati Act for independent reviews.
Shadow finance minister David Burt said last night the Pati refusals were “not surprising because it seems they do not want the public — the people of Bermuda — to know what they have signed the people of Bermuda up for and that’s the scariest thing of all”.
He added that “so many questions” still surrounded the “largest public procurement project in the history of this country”.
“The circumstances around this should have everyone’s alarm bells going off. That’s why I continue to insist that we see some transparency on this.”
Our first Pati request in January was for the nine schedules associated with the $250 million airport development agreement between the Bermuda Government and the Canadian Commercial Corporation.
Mr Burt, chairman of the parliamentary Public Accounts Committee, attempted to obtain the same schedules last week, when he summoned Mr Manders to a meeting of the PAC to present copies of the airport development agreement.
Mr Burt’s bid failed when the OBA members of the committee failed to show up so a quorum could not be reached. Finance minister Bob Richards later said the summons was invalid, adding: “The schedules include commercially sensitive information that we cannot release while we are still in negotiations with CCC and [main contractor] Aecon.
“Parts of the [agreement], which I signed last summer, bind us to keep such sensitive information confidential. This is for the benefit of all parties concerned. Releasing those schedules contrary to our agreement would jeopardise Bermuda’s reputation as a responsible and reliable business partner.
“Once the parties reach a final agreement, then all documents that relate to our agreement can, should and will be made public.”
Mr Burt insisted further elements of the contracts could and should be released. The acting Opposition leader argued: “How could the terms and definitions be a secret? How can the schedule of fees that are going to be charged at the people at the airport be a secret? How can you say all these items that should fall under public oversight be secrets?”
The issue is likely to be discussed again when the PAC meets next Wednesday.
Mr Richards released part of the airport agreement online earlier this year, after telling MPs that the full document was “extraordinarily voluminous”. The agreement he shared was just 33 pages long and schedules A through to I, which are referred to extensively throughout the agreement, were missing.
Former One Bermuda Alliance leader John Barritt criticised their absence in a column for this newspaper, writing: “These schedules are essential to understanding that to which the government has committed.”
In its refusal to disclose under Pati, the Ministry’s information officer said the schedules were exempt under section 25 and 26 of the Act, because they contained commercial information and information received in confidence.
This newspaper also asked for all correspondence between Mr Richards and CCC from the date the One Bermuda Alliance became government and August 24 last year, the day the airport agreement was signed.
The Ministry refused that request too, saying all correspondence from December 18, 2012 to December 31, 2014 was already in the public domain and there was “no correspondence” between Mr Richards and CCC between January 1 and August 24, 2015.
We requested an internal review of the decision by Mr Manders, the head of the authority. We were told Mr Manders was involved in the decision so the matter had to be referred to the information commissioner, as per section 44 of the Act.
Our second Pati request in February was for the legal opinion obtained by the Bermuda Government from the international law firm Bennett Jones on whether the government needed a letter of entrustment from the UK to proceed with the airport redevelopment plan.
Mr Richards has said publicly that permission from Britain is not needed for the airport deal. The Deputy Premier told the House of Assembly in November 2014 that the Ministry of Finance sought legal advice from Bennett Jones and was told the letter of entrustment was not required.
Opposition members asked him if he was aware that Bennett Jones had represented CCC previously in respect to a review of an engineering firm and he said he did not know about it but it had “nothing to do with Bermuda”.
The Pati request from this newspaper also asked for the government’s correspondence with Britain on the agreement with CCC, including the initial approach to the UK from Bermuda on the topic and its reply to the entrustment letter which was issued by the UK on July 17 last year.
The Ministry refused to disclose the legal opinion on the grounds it was exempt under section 35 of the Act, which says a record can be withheld if it is “of such a nature that it would be exempt from production in legal proceedings on the ground of legal professional privilege”.
Our request for the correspondence was partially denied because the records included information received in confidence, Cabinet documents and legal professional privilege.
We again requested an internal review by Mr Manders and it was again referred to Ms Gutierrez on the basis that it involved a decision made by the financial secretary.
All the exemptions cited by the Ministry of Finance under the Pati Act in response to both requests are subject to the caveat that “a record shall be disclosed if disclosure of it is in the public interest”, with the exception of Cabinet documents.
Ms Gutierrez said today: “The public has an unqualified right to an independent review by the information commissioner. It is important that the public understands that this is a legal right, not something subject to my discretion.
“When the information commissioner’s office receives any application for a review, we check to make sure it meets the technical requirements under the Pati Act for the information commissioner to have the legal power to hear it.
“Once we know the technical requirements are met, the applicant is entitled to a review. I want to emphasise that once we have a valid application, no discretion is involved in deciding to hear it.”
If Ms Gutierrez does launch reviews into the refusals, she will decide if the public interest outweighs the reasons given for withholding the records.
Bermuda’s Pati Act came into effect on April 1 last year. Mr Richards had told Parliament the public would be able to request information about the airport deal under the new legislation.
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