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AG and ICO lock horns over release of information

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Kathy Lynn Simmons, the Attorney-General (File photograph)

The Attorney-General has asked a judge to dismiss an order from the Information Commissioner to make the Government hand over records related to payments from the public purse to former premier Ewart Brown.

The civil case was said in the Supreme Court to be the first in Bermuda where a public authority has mounted a legal challenge to the powers of the independent Information Commissioner.

Paul Harshaw, who represented Kathy Lynn Simmons, the Attorney-General, told the court last Wednesday that Gitanjali Gutierrez, the Information Commissioner, would be the “most powerful person in Bermuda” if her argument that she could require the records to be disclosed to her was correct.

Mr Harshaw said that interpretation of the Public Access to Information Act 2010 was “simply not rational”.

But Craig Rothwell, who appeared for the Information Commissioner, said the Attorney-General’s judicial review application was premature and she should have let the Information Commissioner check that the records were excluded under Pati.

Gitanjali Gutierrez, the Information Commissioner (File photograph by Blaire Simmons)

Mr Rothwell said it was a deliberate decision by legislators to give the commissioner wide powers and it was important she was able to carry out investigations and, with the Pati Act still in its infancy, review decisions made by the heads of public authorities.

He added: “The Information Commissioner’s fear is that if the challenge is successful today it would lead to a dilution of those powers.”

The case stems from a public access to information request from The Royal Gazette for a December 2017 agreement the Government made with Dr Brown’s two medical clinics to provide them with compensation for financial losses after fees for medical scans were slashed.

Dr Brown had received $600,000 in taxpayers’ cash at the time of the request in February 2018 and eventually got a total of $1.2m in compensation from the Ministry of Health.

The ministry disclosed more than 300 pages of redacted records in response to the request but refused to release some records on the grounds they were confidential documents “obtained or created” by the Attorney-General’s Chambers.

The Gazette asked Ms Gutierrez to review the decision.

The Information Commissioner issued summonses on November 26 last year that required the acting Permanent Secretary at the Ministry of Health and the Solicitor-General to let her examine the records the health ministry claimed fell outside the scope of the Pati Act.

Mr Harshaw told Puisne Judge Shade Subair Williams it was “self-evident” that the documents requested by the Gazette fell within a list of records excluded from Pati under section four of the legislation, so Ms Gutierrez had no power to order their disclosure to her.

He asked the court: ”How can the Information Commissioner have jurisdiction … to review records that are not subject to the Act?”

Mr Harshaw claimed if her argument was upheld then she could demand “access to every record held by every public authority”.

He highlighted other records excluded under Pati legislation and said that “the records we are talking about include records relating to legal actions or threatened or apprehended legal actions, prosecutions of indicted persons and other documents obtained or created … by the Attorney-General or the Director of Public Prosecutions or other public authorities”.

Mr Harshaw added: “If the Information Commissioner is correct, she has access to every name and every address of every person who is currently a protected witness.

“She has access to every diplomatic exchange at Government House if she’s right.

“She has access to every record of the police intelligence division if she is right and she has access to every judicial record in the Supreme Court if her argument is correct – including your ladyship’s notes of this hearing.”

But Mr Rothwell said: “We take a slightly different view as to what this case is about.”

He said the case was brought to challenge the “extent of the powers” of the Information Commissioner to carry out investigations and review decisions made by the heads of public authorities.

Mr Rothwell added that if the Attorney-General’s lawsuit was successful it “would effectively enable a public authority listed under section four – not just the Attorney-General, because there are others listed there – to self-certify what they consider to be an exempt record under section four”.

He insisted: “This is a point of principle. Does section four allow public authorities to say ‘this is what I consider to be excluded’?”

Mr Rothwell said the effect of preventing the Information Commissioner from checking that public authorities had correctly judged which records fell outside Pati was “to drive a carriage and horse through the structure of the Act”.

He told Mrs Justice Subair Williams that the Act clearly set out a path for Pati requesters to appeal decisions made by public authorities without having to go to court.

Mr Rothwell said: “That costs them nothing.”

He added that none of the commissioner’s decisions since the Pati Act came into effect had been appealed or judicially reviewed "so something is working extremely well in that process“.

Mr Rothwell said the court’s involvement at this stage was a disruption of that process.

He added: “It’s respectfully submitted that this court should support and respect the role created … by the Legislature.”

Mrs Justice Subair Williams reserved judgment.

She thanked the lawyers for fielding her many questions during the hearing in chambers.

The judge said: “It’s not the simplest case. It obviously doesn’t have much jurisprudence behind it.”

•It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any slanderous or defamatory comments made on our website, this move is for our protection as well as that of our readers.