PATI: Scott welcomes law he helped us get
Today Bermuda joins the ranks of jurisdictions around the world where freedom of information legislation holds sway.
The Public Access to Information Act (PATI) will not open all doors: sensitive personal information or details threatening national security can still be withheld.
However, the law going into effect today has profound implications for the Island's governance — and could not have arrived soon enough for former Premier Alex Scott.
“It has been like waiting for Christmas,” Mr Scott told The Royal Gazette. “Sometimes you can wait so long, you forget what you really asked for.”
The push for PATI was announced in the Progressive Labour Party's October 2003 Throne Speech, and research began at Mr Scott's direction in April 2004.
He assigned civil servants to develop freedom of information legislation, saying that PATI should be ready by 2005 — a speculation that turned out to be optimistic.
PATI was part of “a compendium of initiatives, all aimed at empowering the voters, electorate and populace, with the overall goal of improving governance in Bermuda”, Mr Scott said on the eve of the legislation's passage.
“There has been the perception, not only here but elsewhere, that information, archives and records are government information — that it, in quotes, ‘belongs to the Government', when in actual fact it is the other way round.
“The government of the day is the caretaker of information for the public it serves.
“Should and when the public want to have access to their information, then you have to provide the legislative framework for them to do so.”
The Ombudsman Act 2004 came from similar motives, Mr Scott added, giving the public “recourse to question decisions taken by the Government”, and requiring the Government to serve the people”.
He said: “If it is done correctly, then even after you and your Government may have gone on to the history books, that change to the institution remains to serve the public.”
It was always going to take time, Mr Scott conceded.
“When we conceived of it in 2003, there was a task ahead of us to digitalise or at least organise all the Government records so that they could be recalled in a reasonably timely fashion,” he said. “That is what has taken so much time.”
He said that there was a possibility of “a slip between cup and lip” as the new system comes into effect, but voiced confidence in the new information commissioner, Gitanjali Gutierrez.
“Hopefully it will be carried out in the spirit in which it was intended, and the public is better served when they require their information,” he said. “Sometimes those of us in Government lose sight of the fact that it is not our information.”
The demand for transparency and accountability from Government is an old cause spanning several administrations.
In 1997, a joint committee was established to draft a registry of interests for Members of Parliament, chaired by Trevor Moniz, who was then a backbencher for the United Bermuda Party.
That same year, the PLP's Jennifer Smith demanded “financial accountability from Government” over spending on the National Stadium.
The next year, the PLP pledged in its election manifesto to enshrine accountability and transparency as “the underlying credo” for its administration.
After decades as Opposition, the PLP swept to power in the 1998 general election and it was the UBP's turn.
“Before today, no Government has proposed that the doors to the workings of Government be opened up for public scrutiny in the interests of transparency and good governance,” Mr Scott said in July 2005, when the PLP released a discussion paper on PATI.
“These proposals will ensure the public is more informed about the work of Government and therefore better able to actively participate in the political process.”
In 2006, Dr Ewart Brown replaced Mr Scott as Premier.
Although Dr Brown said that PATI would be kept “in play”, the legislation appeared to drop off the radar — even as Cayman Islands passed a freedom of information law (FOI) in August 2007 that came into effect in January 2009.
In January 2008, The Royal Gazette launched its own campaign — “A Right to Know: Giving People Power” — to cover the issue and push the Government to pass PATI that year. It included “Sunshine Week” two months later to encourage public debate on the issue, and invited people to wear yellow as a show of support.
This was in reference to the PLP's 2003 electoral platform pledge for a country “where Government continues to operate in the sunshine of public scrutiny”.
Meanwhile, the Government's decision to cut its official advertising with this newspaper was decried by The Royal Gazette and the Inter American Press Association in the United States as politically motivated.
Dr Brown wrote to the media watchdog that the Government had repeatedly voiced its support for PATI, but that it was “not a high priority”.
Dr Brown released a draft of the bill for public consultation in October 2009 amid concerns that the legislation might not be retroactive. Hundreds of suggestions were submitted, and the Premier declared that PATI had always been intended to be retroactive.
“We just don't want retroactivity to be used as a means of stymieing Government,” he said.
Parliament passed PATI legislation in 2010, but the Act had yet to come into force by the time the December 2012 election was won by the One Bermuda Alliance.
Initially, the new Government continued the silence, this time prompting a demand for updates on PATI from Marc Bean, the Leader of the Opposition.
Fresh PATI legislation was approved unanimously by MPs in July last year, setting today as the start date for the new regime.
It was the group Transparency International that led businessman and transparency advocate Michael Hardy to push for Bermuda to acquire public access to information.
Bermuda ranked poorly on the organisation’s survey of countries when it came to the availability of information.
Founded in 1993, Transparency International is based on rolling back institutionalised secrecy as an anti-corruption measure.
Mr Hardy said he became interested in transparency “on both the corporate and governmental side”, and read the early PATI legislation that emerged under the administration of former Premier Alex Scott.
Asked for his “wish list” of matters to investigate now that PATI is law, the former director of the Bermuda International Business Association pointed to a letter sent in 2000 to the Organisation for Economic Co-operation and Development by the Finance Minister of the day, Eugene Cox, addressing the controversy over Bermuda as a potential tax haven.
“Mr Cox asked them to keep the second part of the letter confidential — we only got to see the first part,” Mr Hardy said.
“I took a contingent of captive managers to see him, saying that out clients were interested in seeing what we had agreed to. Mr Cox would not release it.”
Mr Hardy said he believed that the document would give clues as to the extent of the Bermuda Government’s suspicions on what lay in store for jurisdictions viewed as tax havens.