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Appeal Court sides with ICO over right to see documents

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Gitanjali Gutierrez, the Information Commissioner (File photograph)

Appeal court judges have ruled that the Information Commissioner has the right to examine records that public authorities claimed were outside the scope of access to information legislation.

In a judgment handed down on Friday, they said that being able to prevent handover of the material to assess whether it was, in fact, excluded would defeat the law’s purposes.

Sir Christopher Clarke, the president of the Court of Appeal, added: “Any review without sight of the documents would be, in many cases, illusory or ineffective.”

Information Commissioner Gitanjali Gutierrez this afternoon welcomed the decision and said her office would “strive to protect” the aims of the Public Access to Information Act 2010.

The legal case was first sparked by a Pati request to the Ministry of Health from The Royal Gazette seeking records involving payments from the public purse to former premier Ewart Brown.

More than 300 pages of redacted records were disclosed but the ministry refused to release some on the grounds they were confidential documents “obtained or created” by the Attorney-General’s Chambers and so were not subject to the Pati Act under section 4(1)(b).

The Gazette asked Ms Gutierrez to review the decision, prompting her to make a request to the Ministry of Health to see the records.

Upon refusal, she issued summonses to the ministry and the Solicitor-General, which led Attorney-General Kathy Lynn Simmons to seek a judicial review in the Supreme Court.

Puisne Judge Shade Subair Williams agreed with the Attorney-General that the summonses should be quashed, ruling last year that some records were “not governed in any way by the Information Commissioner” and public authorities could not be compelled to produce them.

The Information Commissioner challenged the decision and appeal court judges considered whether the commissioner has the power to examine records said by a public authority to be excluded from the application of the Act.

Section 4(2) of the law says documents related to the general administration of the Attorney-General’s Chambers do fall within the scope of the legislation.

Sir Christopher Clarke, the Court of Appeal president (File photograph)

Sir Christopher said in last week’s judgment: “The manifest purpose of the Act was to give the public the right ‘to obtain access to information held by public authorities to the greatest extent possible, subject to exceptions that are in the public interest or for the protection of the rights of others’, to increase transparency; and to eliminate unnecessary secrecy and to increase the accountability of public authorities.

“These purposes will be defeated if public authorities can prevent production of documents or any review of a decision to do so simply by the relevant authority saying that they fall within section 4(1)(b) and not within 4(2).”

He wrote: “The commissioner has wide powers of examination of documents, even if for instance, they are said to be covered by privilege. There are very significant safeguards.

“The review is to be conducted in private, no doubt because the Act envisages that the commissioner may have to consider highly sensitive documents.

“The commissioner, who is independent and not subject to the direction or control of any other person or authority … is obliged to maintain secrecy in respect of all matters coming to her knowledge and not to communicate any such matter except for the purpose of carrying out her functions under the Act.”

Sir Christopher’s judgment, backed by justices of appeal Sir Maurice Kay and Geoffrey Bell, highlighted that, given the safeguards and the fact that release to the commissioner did not automatically mean release to the public, there appeared to be “no sound reason why the legislature would wish to prevent the commissioner from examining a document” said to be outside the scope of the legislation.

He added that “if the public authority thinks that the commissioner has erred in law it can apply for judicial review”.

Commissioner received some records for review

In his judgment, Sir Christopher Clarke said that the Court of Appeal hearing proceeded on the basis that none of the records that were the subject of the Pati review were produced to the Information Commissioner.

He noted, however, that Monica Carss-Frisk, KC, acting for the commissioner, informed judges last November that not all of the documents were withheld.

The Royal Gazette asked in February 2018 for access to an agreement reached on December 8, 2017 between the Ministry of Health and the Brown-Darrell Clinic and Bermuda Healthcare Services, as well as communication related to the agreement and records showing how payments were calculated.

A “before action” letter received by the ministry in October 2017 about judicial review of the Bermuda Hospitals Board (Hospital Fees) Amendment Regulations 2017 as well as a response and any other communications were also requested.

Sir Christopher said that records deemed by the ministry to fall outside the scope of the Pati Act but handed over to the commissioner for review included:

• the agreement of December 8, 2017, provided with a letter from the health ministry permanent secretary in August 2019;

• two other records covered by the request, also provided by the ministry with the same letter.

Sir Christopher’s judgment said: “Why the ministry had provided these three documents is unknown.

“In addition, the ministry had provided the commissioner with a substantial number of documents in relation to which the claim was for exemption from production.”

It added that when summonses were issued in November 2020 they did not identify the three records already provided – out of 79 that it was claimed were withheld because the Act did not apply to them.

The judgment said that “by the time of the hearing before us both sides appear to have been proceeding on the basis that the records which had not been provided included the settlement agreement”.

It added that the commissioner sought the withheld records “because it is her standard practice to review the documents about which she is required to make a decision and her evidence is that she has never before issued a decision in reviews involving section 4 without reviewing the records to which her decision relates”.

The judgment said: “The fact that the three documents in question were provided to the Information Commissioner by the ministry in August 2019 means that no summons was needed by her in order to secure them.

“It does not, of course, mean that the requester is entitled to access to them since, if section 4 applies to them, they are not covered by the Act.”

Justice Shade Subair Williams (File photograph)

Mrs Justice Subair Williams found earlier that the Information Commissioner went beyond her legal powers when she issued the summonses to allow her to view records about the payout, which eventually totalled $1.2 million.

The appeal court judgment said it was argued for the commissioner that the “common-sense approach” was the Information Commissioner should be able to look at a document to see whether it was excluded from the Act’s application.

It explained that if the commissioner had power to examine records that were said not to fall within the scope of the law, she would have access to documents such as legal advice given by or to the Attorney-General or the Director of Public Prosecutions as well as information about witnesses under protection.

The ruling added: “In the submission of the Attorney-General it cannot be right to make someone who is not already privy to such records the arbiter of whether they fall within the ‘general administration’ description in section 4(2).

“Those who are already privy are the persons in the best position to make that judgment, and their decision would, itself, be subject to judicial review.”

Sir Christopher found that "until it has been accepted by the requester, or determined by the commissioner, that the records which are sought are excluded from the operation of the Pati Act … they cannot be treated as so excluded“.

The court allowed the appeal and set aside Mrs Justice Subair Williams’s earlier ruling.

Sir Christopher added: “When the documents that were the subject of those summonses have been produced it will then be for the commissioner to decide whether any of them were records obtained or created by the Attorney-General’s Chambers in the course of carrying out their functions and whether or not they related to the general administration of those chambers.”

Ms Gutierrez said today: “In clear and firm language, the Court of Appeal recognised and confirmed in their decision that the Information Commissioner’s independent review is crucial to safeguarding the public’s right under the Pati.

“The Information Commissioner has the authority to examine public records to ensure her review is meaningful, complete and effective.

“Anything less would render her review – and the public’s Pati rights – illusory.

“As Information Commissioner, I remain dedicated to fulfilling the mandate of the Pati Act.

“Along with the exceptional officers in the Information Commissioner’s Office, we will continue to strive to protect the purposes of the Pati Act and uphold the Pati rights of every Bermudian and resident.

“We welcome this decision by the Court of Appeal.”

• UPDATE: This story has been updated to include a comment from the Information Commissioner.

To read the judgment in full, click on the PDF under “Related Media”.