Health ministry ordered to rethink Pati request denial
Health ministry officials have been ordered to look afresh at whether more records related to payments totalling $600,000 from the Government to former premier Ewart Brown can be made public.
Information Commissioner Gitanjali Gutierrez told the Ministry of Health, in a recent decision, to provide The Royal Gazette with a new response by December 8 about some documents that it previously withheld.
A statement from the Information Commissioner’s Office said her October 27 decision “brought closure” to a public access to information request which was submitted almost six years ago and which gave rise to a “landmark” Court of Appeal decision that upheld Ms Gutierrez’s right to examine public records.
Her latest investigation, following a decision she issued last year about the same Pati request, considered 77 records which were not disclosed by the health ministry on the grounds that they did not fall under access to information legislation.
The commissioner agreed that most were not subject to Pati, but found that 21 records or parts of records — mostly the ministry’s internal correspondence about the payments to Dr Brown — should be considered for disclosure.
The Gazette’s Pati request asked 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 diagnostic scans were slashed, as well as related records.
Dr Brown had received $600,000 in taxpayer funds at the time of the February 2018 request. The payments eventually totalled $1.2 million.
The ministry disclosed more than 300 pages of redacted records in response to the request but refused to release some on the grounds they were confidential documents “obtained or created” by the Attorney-General’s Chambers and therefore did not fall under the Pati Act.
The Gazette asked Ms Gutierrez to review the decision, prompting her to ask the Ministry of Health to allow her to view the records.
She issued summonses to the Ministry of Health and the Solicitor-General after her request was refused, which led Attorney-General Kathy Lynn Simmons to seek a judicial review in the Supreme Court to have the summonses quashed.
Ms Simmons won the civil case in the Supreme Court, but the Court of Appeal overturned that ruling — the first in Bermuda to consider the extent of the Information Commissioner’s powers — and awarded costs to Ms Gutierrez.
The appeal panel said if public authorities could refuse to hand over material to the independent commissioner to assess, it would defeat the purpose of Pati.
The ICO statement last week said: “Following the Court of Appeal’s landmark ruling in favour of the Information Commissioner in March 2023, the Information Commissioner was able to conduct her review of the Ministry of Health headquarters’s refusal of the records.
“The Ministry of Health headquarters provided copies of the records needed by the Information Commissioner, along with descriptions of records and other information required for the review.”
In her decision, Ms Gutierrez said eight records and parts of 13 other records were not obtained or created by the Attorney-General’s Chambers and she was not convinced the ministry was justified in withholding them.
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