Government House ordered to release more records in Pati case
Government House has been ordered to release part of a record which raises “questions about the procedures” used by a committee which reviews complaints about judges.
Information Commissioner Gitanjali Gutierrez gave the Office of the Governor until January 6 to disclose the information and parts of other records which it withheld from a person who applied for them under public access to information legislation.
The record concerns the Judicial and Legal Services Committee for Bermuda, a non-statutory body set up by former Governor George Fergusson eight years ago to provide advice on constitutional responsibilities relating to the Judiciary.
At the time, Mr Fergusson made public a protocol setting out the procedure the committee would follow for dealing with judicial complaints.
The Pati requester sought records relating to a complaint they made in 2018 to John Rankin, the Governor at the time, about a judicial officer.
The JLSC considered and dismissed the complaint.
The requester, who is anonymous, then filed another complaint to Mr Rankin, claiming that some of the committee members who handled the first complaint were conflicted.
The requester asked Government House in January 2020 for all records about the first complaint, including communications between Mr Rankin, the JLSC or any of its members, and a “specified private sector entity”.
They also asked for communications between the committee or any of its members and the judicial officer who was the subject of the first complaint.
The requester, dissatisfied with Government House’s response – which included the non-disclosure of some records on the grounds that releasing them would “undermine its deliberative process” – asked Ms Gutierrez for an independent review.
The Information Commissioner received 41 withheld records from Government House during her review and concluded that it was justified in withholding parts of some of them from the requester.
But she said other parts were not exempt under the Public Access to Information Act 2010 and must be released.
Ms Gutierrez wrote: “One specific public interest consideration weighs in favour of disclosure of certain, limited exempt records or part of records.
“Although the Information Commissioner cannot discuss the details of the content of withheld records, record 36 raises what appears to be a question about the procedures under the [JLSC] protocol in general, as well as specifically with respect to their use in the applicant’s first complaint.”
She said the protocol itself noted that, before it was adopted: “The absence of any transparent and formal procedure for complaints against judges leaves no clear channel for public dissatisfaction and, arguably, exposes the Judiciary to avoidable and unjustifiable ‘wildcat’ public attacks.”
Ms Gutierrez said: “The protocol was established to ensure transparent and formal procedures for complaints against judges.
“Given the questions about these procedures discussed in record 36, the Information Commissioner disagrees with Government House that disclosure is for the applicant’s personal or private interests only, rather than for the broader public interest.
“While the records being sought relate to complaints filed by the applicant, record 36 raises broader questions about the procedures in the protocol.
“For these reasons, the Information Commissioner is of the view that the public interest would, on balance, be better served by the limited disclosure of parts of record 36.”
Ms Gutierrez noted that the requester was concerned that a member of the JLSC had disclosed information about their complaint to a private entity but said she found no information “exhibiting that this occurred” in the withheld records.
She also said Government House was justified in withholding the names of the JLSC members who considered the applicant’s complaints.
Asked to comment on the decision, a Government House spokeswoman said: “The Governor fully supports the Information Commissioner and the independent scrutiny and oversight which her office provides.
“Government House will comply with the decision of the Information Commissioner.”
The JLSC is chaired by Sir Christopher Clarke, the president of Bermuda’s Court of Appeal. The other members are Chief Justice Narinder Hargun; Bermuda Bar Association president George Jones; David Jenkins, former chief justice of Prince Edward Island Court of Appeal in Canada; Caribbean Court of Justice judge Adrian Saunders; former Ombudsman Arlene Brock; charity head Martha Dismont; and former independent senator James Jardine.
* To read the Information Commissioner’s decision and related press release, as well as the JLSC protocol, click on the PDFs under Related Media.