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Request for DPP application details rejected

Qualified but overlooked: Cindy Clarke, the Deputy DPP

Government House has refused to release records detailing why a Bermudian twice lost out on the post of Director of Public Prosecutions.

The Royal Gazette made a public access to information request late last year for “all the information and documentation on the selection process” for the job when it was advertised in 2013 and 2014.

Long-serving Deputy DPP Cindy Clarke, a Bermudian, is understood to have been the only applicant to respond to the job advert in 2013, and she was appointed to take over from work permit holder Rory Field, subject to what Governor George Fergusson referred to as a “suggested transitional period”.

But the appointment became “untenable”, according to Mr Fergusson, after what he said were “certain subsequent developments”. Mr Field agreed to carry on as DPP in December of that year and Government House later said there would be no investigation into why the Bermudian candidate was not appointed.

In January last year, English barrister Mr Field was reappointed as DPP for another two years, prompting Michael Dunkley to “strongly” express his concerns to the Governor.

The Premier said he would raise the issue with the Foreign & Commonwealth Office junior minister with responsibility for the UK Overseas Territories, while shadow Attorney-General Michael Scott described the reappointment as a “slap in the face” to those who believed Bermudians should come first.

About 15 lawyers staged a mass walkout when Mr Field gave an address to a special sitting of the Supreme Court, citing their disappointment at the non-appointment of a “perfectly qualified Bermudian”.

Mr Field resigned last December. Subsequent adverts for his post said only Bermudians or candidates living on the island could apply and Bermudian lawyer Larry Mussenden was announced as his replacement last month. The aim of our Pati request was to find out why Ms Clarke was twice passed over for promotion but it was rejected by Deputy Governor Ginny Ferson, information officer for Government House.

She decided the records were exempt from disclosure as they contained personal information and information received in confidence. This newspaper appealed Ms Ferson’s decision to the Governor and he agreed with her that the personal information exemption did “apply to the material relative to the decisions affecting the appointment (and non-appointment) of candidates”.

He said other information given in confidence by “candidates and others involved in the selection process from outside the public service” was also exempt.

Mr Fergusson did release some information. He told us that in 2013 one candidate applied who met the criteria for the job and in 2014 there were four candidates, including Mr Field.

He also shared e-mail correspondence relating to the search for a replacement for Mr Field in 2013 and 2014.

An e-mail from Mr Fergusson, dated July 18, 2013, stated that he had discussions with both the Premier and Chief Justice Ian Kawaley about filling the position. “The immediate background is that Rory Field’s contract expires in September,” the Governor wrote.

“I had previously agreed with him that I would appoint him afresh for the period of September-31 December to enable him to complete Privy Council cases in which he had been engaged and to allow for the completion of Cindy Clarke’s attachment to the Crown Prosecution Service in time for her to be a candidate.

“Rory Field has notified me that, if offered the opportunity, he would like to stay on for a further full term. I have informed him that I want to give Bermudian candidates an opportunity to compete for the role.”

He suggested that an advert be produced, recommending it specify that the competition was “limited to Bermudians”. The subsequent advert stated that the applicant should be “Bermudian or free of Bermuda immigration control”.

When Mr Field’s contract again approached a close in 2014, e-mailed discussions about filling the post resumed.

In September 2014, Mr Fergusson wrote to Dr Justice Kawaley noting that a draft of the advert for the post included lines specifying that the candidates should “be Bermudian or free of Bermuda immigration control” and that “only candidates currently practising in Bermuda need apply”. Mr Fergusson added: “That was the original model — before you came and persuaded me to go for a full international offering, with Bermudians being given preference.”

Dr Justice Kawaley responded that there had been a “proofing mistake” on his own part, adding: “I thought I had deleted the Bermudian-only requirement as we discussed at the JLSC [Judicial and Legal Services Committee] meeting — that was my main point on the issue!!!”

The Governor proposed an amendment which would state that preference would be given to Bermudians or applicants who were practising on the island at the time but Dr Justice Kawaley responded that the use of “preference” would result in a much larger scope.

The Chief Justice later wrote that the JLSC decided to exclude overseas applications altogether but allow non-Bermudians already on the island to apply.

The final version of the advert — which appeared in The Royal Gazette on September 17 and September 23, 2014 — included a line stating that only Bermudians or candidates practising in Bermuda could apply.

Dr Justice Kawaley later recused himself from the selection committee, with an e-mail from Governor Fergusson to Justice Edward Zacca stating that the Chief Justice felt he was “too well informed about some of the circumstances of the last appointment process”.

We have appealed the Government House Pati decisions to the information commissioner, as is the right of any requester under the legislation, and are awaiting to hear the outcome of her independent review.

To view our Pati correspondence, click on the PDF links under “Related Media”