Colonel Burch on Sandys 360
House: Burch keeps Sandys 360 report secret
The public works minister told MPs yesterday that he will not release a report into the finances of a failed sports centre.
Lieutenant-Colonel David Burch was speaking after Gitanjali Gutierrez, the Information Commissioner, ordered the Government to release by Monday the report on Sandys 360 by professional services firm KPMG into the project, which cost taxpayers millions of dollars.
However, Colonel Burch, the public works minister, told the House of Assembly that the Government did not agree with Ms Gutierrez’s decision.
The minister, who referred to Ms Gutierrez by her married name, said: “I must say that it appears to me that the Information Commissioner Mrs Minors is going out of her way to provide all manner of support to the daily.”
He added that Ms Gutierrez had said: “Government has provided limited rational and factual information concerning its decision-making around Sandys 360, primarily provided during parliamentary debate.”
Colonel Burch said: “Such a cavalier dismissal of the proceedings of this House should be as offensive to the other 35 members as it is to me.”
He said that Ms Gutierrez had been told that the report would not be released “as it was not commissioned by, nor is it the property of, the Department of Public Lands and Buildings”.
Taxpayers funded Sandys 360 to the tune of at least $5.3 million, and possibly more, before it closed its doors because of financial problems in November 2013.
Colonel Burch added that he had outlined reasons for the Government’s decision to buy the property in March last year.
He said: “It was a comprehensive, fulsome and compelling rationale and reasoning for doing so, which is generally supported by the Opposition.”
Colonel Burch said that “a number of legal hurdles” had not allowed the sale of the property to take place. He added: “Once there is a final resolution, I will report further to the House.”
Ms Gutierrez said in May: “Disclosure of the KPMG report will undoubtedly close the knowledge gap in a number of areas for the public concerning the spending and decision-making related to Sandys 360.”
The KPMG report was commissioned by the trustees of Sandys Secondary Middle School, who own the freehold of Sandys 360, after the West End sports centre closed down only four years after it opened.
The Department of Public Lands and Buildings rejected a public access to information request from The Royal Gazette for the report in February 2016, when the One Bermuda Alliance was in power, on the ground that it was exempted from disclosure because it was provided in confidence.
The Gazette appealed the decision to the information commissioner and, during her review, KPMG and the school trustees also objected to the report’s release.
But Ms Gutierrez decided there was “no express communication or understanding that the report was given in confidence to, and would be kept confidential by, the department or Government”.
She said: “With respect to the actions the Government may have taken, KPMG and the trustees reasonably could have expected any number of circumstances to have arisen which would have led to public disclosure of some or all of the KPMG report.”
Colonel Burch declined to answer questions after the morning session of the House yesterday.
Penalties for failure to comply with orders made by the information commissioner are laid out in the Public Access To Information Act 2010.
The Pati legislation says that “a decision of the Commissioner is binding on all persons affected by it and, upon the decision being filed with the Registrar of the Supreme Court, it shall have the effect of an order of the Supreme Court and shall be enforceable in the same manner as an order of the court”.
But the legislation also allows anyone, including a public body to apply to the Supreme Court for a review of the decision.
The court can “confirm, vary, remit or set aside the decision”.
An application for judicial review is “heard and determined by a judge in chambers unless the court, with the consent of the parties, directs otherwise”.
Tim Marshall, of law firm Marshall Diel & Myers, said that contempt of court proceedings could be started to enforce an order of the Supreme Court.
But he added: “There is no reason to believe that the minister or the public authority will act outside of the four corners of the Act.”
Mr Marshall said that if Colonel Burch was aggrieved by Ms Gutierrez’s decision “he or the relevant authority will instruct the Attorney-General’s Chambers to file judicial review proceedings”.
He added: “It is possible that the reasons that might be advanced for non-disclosure may resonate with the court.
“We will have to wait and see.”
Craig Cannonier, the Leader of the One Bermuda Alliance, said Ms Gutierrez “believes that it needs to be released”.
He added: “If it is not released, the question becomes is Colonel Burch in contravention of any court order?
“That is the real question now.”
Mr Cannonier said that it was an insult by Colonel Burch to refer to Ms Gutierrez, who is married to Fabian Minors, a former OBA election candidate, as Mrs Minors.
He added: “I think it is a throwback by this member who consistently tries to tie people who have an opinion that he may not agree with theirs to the OBA — and he needs to stop it.
“The Premier needs to call him out on it.”