No release for airport communications
A decision not to release correspondence between the Government and the UK on the $250 million airport redevelopment project has been upheld by the Information Commissioner's Office.
Answer Styannes, the Acting Information Commissioner, said the documents were exempted under freedom of information laws because they contained information communicated in confidence by a state.
The ICO decision said: “There is a significant interest in furthering the public's understanding of a substantial investment of public money in a project such as the airport redevelopment.
“The Acting Information Commissioner notes, however, that the Ministry of Finance has disclosed the entrustment letters dated November 10, 2014, and July 17, 2015, which were accepted by the Bermuda Government.
“Furthermore, the Acting Information Commissioner is of the view that there is a strong public interest in maintaining states' expectation of confidence when engaging in free and frank discussion with another jurisdiction to further its interests.”
Ms Styannes ruled that the confidence element outweighed the public interest of disclosure.
The Public Access to Information application, made by The Royal Gazette on February 23, 2016, asked for several records related to the redevelopment of the LF Wade International Airport.
Documents requested included the correspondence between the UK Government and the Bermuda Government on the agreement with the Canadian Commercial Corporation, including its original approach to the UK.
The application was denied in April 2016 but, after an appeal, Government released some correspondence between the countries in 2018.
The ICO found that the Ministry of Finance had not processed three of the records and asked the Government to make an initial decision.
The ministry declined the request in a decision released on February 11 this year.
The applicant later requested an internal review of the decision and, when the decision was upheld, sought an independent review.
The Ministry of Finance said the records contained confidential government-to-government communications which the UK Government would expect to be held in confidence.
The ministry also argued that “considerable information” had already been released on the project and the disclosure would give the public no further insight into the decision-making and rationale behind the project.
The ICO decision said: “Records 1, 2, and 3 are correspondence between the UK and Bermuda Governments, discussing the wording of a draft entrustment letter, which was to set out the powers delegated to Bermuda by the UK in relation to the airport redevelopment project.
“In these records, the acting Premier provided the Bermuda Government's detailed views on the draft and proposed changes for the consideration of the UK Government.”
The decision added: “The outstanding records were not marked confidential at the time they were sent, nor do they contain any statement that the information was provided in confidence.
“However, formal designation of a record as confidential — or the lack thereof — is not definitive of whether the record was communicated in confidence.”
Ms Styannes's review found that the content of the records, along with the circumstances of the communications, indicated that they were intended to be confidential and that the Government was right to decide against their release.
The decision followed one made by the Information Commissioner in January to withhold legal advice related to the airport redevelopment.
Gitanjali Gutierrez, the Information Commissioner, ruled the ministry was right to deny disclosure of the legal opinion on the grounds that it was legal advice and protected by professional privilege.