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Commissioner issues first Pati order

Information commissioner Gita Gutierrez has issued her first order compelling a senior civil servant to release a public access to information decision.

Ms Gutierrez filed the order at the Supreme Court against the permanent secretary at the Ministry of Legal Affairs, Rosemary Tyrrell, giving Ms Tyrrell until Tuesday, November 22 to comply.

The order follows a decision by the information commissioner that the PS failed to respond within the statutory six-week timeframe to a person who asked her to conduct an internal review of a Pati decision made by the Judicial Department.

Ms Tyrrell is one of three senior civil servants who haven't complied with the Public Access to Information Act and been criticised by Ms Gutierrez in decisions posted on her office's website in recent weeks.

The first was the financial secretary, Anthony Manders, who also did not provide an internal review decision to a Pati requester within the six weeks set out in the legislation. The case involved a Pati request to the Customs Department for personnel records and the FS eventually released a decision during the commissioner's review.

The most recent was Valerie Robinson-James, permanent secretary at the Ministry of Education.

As reported last week by this newspaper, the Ministry of Education failed to respond to a Pati request from The Royal Gazette within six weeks and Ms Robinson-James then failed to provide an internal review decision. The PS later apologised for not sharing the outcome of her review and issued a decision.

The independent commissioner, in her decision regarding Ms Tyrrell, reveals that on February 24 this year, an individual, who remains anonymous, asked the Judicial Department for “records about the data supporting its performance measure outcomes”.

The performance measure outcomes are listed each year in the government's Budget book and include items such as how many trials have taken place and how many court cases were recorded by the court recording system (100 per cent in 2014, according to the last Budget book).

The Pati requester, in this case, received a decision from the Judicial Department on April 13 and asked Ms Tyrrell, as head of the public authority, for an internal review of that decision on May 26.

When an internal review decision wasn't given within six weeks, the requester appealed the case to the information commissioner and she launched a review, asking the Judicial Department to comment.

According to Ms Gutierrez: “The Judicial Department chose not to provide relevant submissions to the information commissioner for consideration in this review.”

She said in her decision that the Judicial Department accepted it did not respond to the applicant's request for an internal review within the required timeframe.

She added: “The Judicial Department was invited by my office to make submissions on the application several times in September and October 2016. Although a reasonable opportunity to make representations was provided . . . no relevant submissions were received explaining why an internal review decision was not issued by the Judicial Department within the statutory timeframe.”

Her court order, filed on November 1, states that the permanent secretary shall conduct the internal review and issue a decision to the applicant, copied to the commissioner, by November 22.

The commissioner's decision states: “If the Judicial Department fails to comply with this decision, the information commissioner has the authority to pursue enforcement in the same manner as an order of the Supreme Court.”

If an internal review decision is not issued by November 22, the commissioner could launch contempt of court proceedings against the PS, much as Ombudsman Arlene Brock did against the Mayor and Deputy Mayor of Hamilton in 2013 for failing to cooperate with one of her investigations.

According to the Public Access to Information Act, a decision of the commissioner is “binding on all persons affected by it”. The Judicial Department has the right to seek judicial review of the commissioner's decision.

A spokeswoman for the Ministry of Legal Affairs declined to comment yesterday, as did Ms Gutierrez.

The Pati Act became law on April 1, 2015. Michael Dunkley said last week that “challenges” seen so far in relation to requests being dealt with in a timely manner were “because those public officers have other things they are doing as well”.

The Premier told this newspaper during a Facebook live chat with readers: “That's one of the things we have to look at: how we improve the efficiency of it.”

He said: “Sometimes, if people have other responsibilities they have to do ... it's going to take some time. That's why we built in that timeframe and that's why we have to look at that to make sure we got it right.”

To read the PDF version of the Pati order click on the link under “Related Media”

Legal Affairs permanent secretary Rosemary Tyrrell

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Published November 16, 2016 at 8:00 am (Updated November 16, 2016 at 8:28 am)

Commissioner issues first Pati order

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