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Government seeks to block examination of payment records

Brown-Darrell Clinic in Smith's (File photograph)

The Government is suing the Information Commissioner to avoid having to hand over records to her about the payment of hundreds of thousands of taxpayer dollars to former premier Ewart Brown.

Dr Brown, who owns two medical clinics, received the funds from the public purse to compensate him for financial losses after fees for medical scans were slashed.

The Royal Gazette asked the Ministry of Health in February 2018 to release the agreement it had with Dr Brown under public access to information, along with a “letter before action” he sent the Government about the reduced fees.

The health ministry rejected the request on the grounds that the records were confidential documents drafted by the Attorney General’s Chambers, so the newspaper requested a review by Information Commissioner Gitanjali Gutierrez.

Ms Gutierrez ordered the ministry and the Solicitor-General to provide her with the records so she could examine them as part of her inquiry – but they were withheld.

Attorney-General Kathy Lynn Simmons has since challenged the order by seeking a judicial review.

She claims the Information Commissioner does not have the authority to examine records when a public authority decides they fall outside the scope of the Pati Act.

In its refusal letter, the health ministry said the Pati Act did not apply to records “created by” the AG’s Chambers “in the course of carrying out their functions” and that all correspondence and communications relating to the agreement and letter before action were redacted and withheld on the same grounds.

The Supreme Court has now granted leave for a hearing, according to a statement from the Information Commissioner’s Office.

The ICO statement said: “The judicial review will consider the Attorney-General’s challenge to two summonses issued on November 26, 2020 by the Information Commissioner to the Acting Permanent Secretary for the Ministry of Health headquarters and the Solicitor-General.

“The Information Commissioner issued the summonses as part of her independent review of the Ministry of Health headquarters’ refusal to release certain records in response to a Pati request.

“The Pati request seeks records relating to the 2017 agreement between the Ministry of Health headquarters and the Brown-Darrell Clinic and the Bermuda Healthcare Services for payments after fees for CTs and MRI scans were reduced.

“The summonses issued by the Information Commissioner required the Ministry of Health headquarters and the Attorney-General’s chambers to allow the Information Commissioner to examine records that the Ministry of Health headquarters decided fall outside the scope of the Pati Act, in accordance with section 4 of the Pati Act.”

The ruling Progressive Labour Party government has previously said the slashing of fees for scans was an “economic vendetta” by the former One Bermuda Alliance administration against Dr Brown.

It gave him compensation which eventually totalled $1.2 million.

At the time of the Pati request, Dr Brown had received $600,000, according to a statement health minister Kim Wilson gave to Parliament.

A directions hearing for the judicial review has been set for Thursday, February 18 at 10.30am.