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Beneficial ownership register to remain secret

Request denied: Gitanjali Gutierrez, the information commissioner (Photograph by Blaire Simmons)

Bermuda’s register of beneficial company ownership cannot be released under the island’s public access to information law, according to a decision due to come out today.

Gitanjali Gutierrez, the information commissioner, said the Bermuda Monetary Authority was right to refuse The Royal Gazette access to the register after a public access to information request was made in February 2017.

The BMA denied the request on the grounds that the secrecy provision in section 31(1) of the Bermuda Monetary Authority Act prohibited disclosure.

The authority said in its denial letter: “Under that provision, the servants and agents of the authority shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of the Government of Bermuda or the Bermuda Monetary Authority or of any person that may come to his knowledge in the course of his duties.

The authority continued: “Breach of this provision amounts to a criminal offence.”

Ms Gutierrez said she was “satisfied that the BMA’s denial of public access to the records was justified”.

The commissioner said the Pati Act allowed records to be withheld if their disclosure was prohibited by other legislation.

She added public authorities did not have to weigh up whether there was a public interest in release of the records in such cases.

Ms Gutierrez examined the BMA’s database, which holds information on the real owners of Bermuda-based companies, as part of her review and said she was satisfied it came under the secrecy provision of the BMA Act.

The Foreign Affairs Committee of the British Parliament recommended this year that Britain should order all its Overseas Territories to make their beneficial ownership registers public.

The committee said: “We believe it is a matter of national security, because there is evidence to suggest that money tied to autocratic regimes has been connected to OT-registered companies, and that considerations of competitiveness cannot prevent action.

“The public in the UK and elsewhere have a right to see beneficial ownership information and we are calling on the Foreign Secretary to lay out plans for achieving this.”

Ms Gutierrez said the committee’s recommendations, in its Global Britain and the Overseas Territories: Resetting the Relationship report, concerned a “policy proposal and do not reflect the existing legislation applicable in Bermuda”.

She added: “The statements by the committee do not carry any weight in this review.”

The commissioner added that Parliament had amended several laws in recent years to remove beneficial ownership records from the scope of the Pati Act, including the Companies Act 1981, the Limited Liability Act 2016 and the Partnership Act 1902.

Secrecy over offshore company ownership came under renewed scrutiny in 2017 after the “Paradise Papers” revelations by the International Consortium of Investigative Journalists and other media organisations.

Almost 100 news outlets around the world revealed how the rich hid their money after client information hacked from Bermuda’s Appleby law firm was made public.

The reports, and comments by Jeremy Corbyn, the leader of the Labour Party, branded Bermuda as one of the world’s most secretive jurisdictions.

The British Parliament later agreed to issue an Order in Council in December 2020 to force British Overseas Territories to establish public registers.

The Bermuda Government has argued that the order will breach the Bermuda Constitution and damage the island’s economy.

Lord Ahmad, Britain’s Foreign Office Minister for the Overseas Territories, said on visit to Bermuda in April that the territories would have until 2023 to establish public registers and that the UK would push for that to be the international standard.

To view the information commissioner’s decision in full, click on the PDF link under “Related Media