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Attorney-General says court ruling establishes limits on Information Commissioner

Bermuda’s first court ruling on the powers of the Information Commissioner underlined the limits of the island’s Public Access to Information Act, the Attorney-General’s office has said.

The Attorney-General’s office spoke out after a judgment on Tuesday by the Supreme Count on a case involving government payments to Ewart Brown, a former premier.

Puisne Judge Shadé Subair Williams ruled that Gitanjali Gutierrez, the Information Commissioner, was not entitled to see documents held by the Attorney-General’s office that detailed payments made to Dr Brown.

A spokeswoman for the Attorney-General said: “These types of public authorities have operations which touch upon some of the most sensitive and privileged information in our jurisdiction.

“The decision was only about records which are outside of the ambit of the Act.

“This is not to be confused with records which do fall within the operation of the Act; the public access to these records remains undisturbed.

“Likewise, the Information Commissioner’s right to demand production of records that fall within the operation of the Act is not affected by the Supreme Court’s decision.”

The payouts to Dr Brown were agreed in 2017 as compensation for losses to his medical clinics after cuts were ordered to be made in fees for diagnostic scans.

The Attorney-General said the decision was “a demonstration of the rule of law being upheld according to the literal interpretation of the express provisions in the Public Access to Information Act”.

She was speaking after Mrs Justice Subair Williams ruled that confidential records held by the Attorney-General’s chambers were off limits to the commissioner.

Ms Gutierrez had wanted to review the documents that had been withheld after a Pati request by The Royal Gazette.

But Mrs Justice Subair Williams ruled that the commissioner was not entitled to examine records outside the scope of the Pati Act.

Mrs Justice Subair Williams wrote in her judgment that “no public authority can be compelled by the Information Commissioner to produce any record to which the Pati Act does not apply”.

The judgment came after Kathy Lynn Simmons, the Attorney-General, applied for a judicial review in December against Ms Gutierrez’s decision to issue a summons for the records.

The court was asked to rule on whether the commissioner had a right to review a public authority’s refusal to disclose records that fell outside the scope of Pati regulations.

The relevant authorities, outlined in Section 4 of the Pati Act, include the Attorney-General’s Chambers.

Section 4 excludes records “obtained or created” by the relevant authorities while carrying out their statutory functions.

The spokeswoman for the Attorney-General’s office said Mrs Justice Subair William’s ruling did not represent “a win” for any side.

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