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House pepper-spray incident records to stay under wraps

Gitanjali Gutierrez, the Information Commissioner (File photograph by Blaire Simmons)

Records of a Parliamentary inquiry set up to look at the use of pepper spray at a 2016 House of Assembly demonstration will not see the light of day for 30 years.

The news came after a decision to refuse to release records of a joint select committee to The Royal Gazette was upheld by the Information Commissioner.

Gitanjali Gutierrez found that the Office of the Clerk of the Legislature “was justified in denying access to the withheld records … because disclosure of the records would be an infringement of parliamentary privilege”.

Her decision – the first ruling of its kind – was released last week.

A notice published online said that a request was made under the Public Access to Information Act in January 2019 that asked for “all records concerning the joint select committee inquiring into the events of the 2 December 2016 incident at the House of Assembly”.

Crowds gathered outside the parliamentary building for a demonstration against the public-private partnership deal to build a new airport.

Ms Gutierrez’s report said: “As the protest continued, Members of Parliament were unable to enter the House of Assembly, which was scheduled to consider, among other things, the controversial Airport Redevelopment Concession Bill 2016 during its session that day.

“Eventually, the Bermuda Police Service deployed its Police Support Unit.

“A member or members of the PSU used Captor spray, commonly known as ‘pepper spray’, against the protesters.

“A number of individuals were injured by the pepper spray, including seniors.

“The use of force by the BPS led to an investigation into the events on 2 December 2016 by a Parliamentary joint select committee formally established in February 2018.”

The decision that the Legislature released information in February 2019 that the parliamentary website was being updated to show dates and times of parliamentary committee meetings.

A list of JSC members as well as dates, times and locations of earlier meetings was also provided.

Ms Gutierrez wrote: “The Legislature denied access to the rest of the responsive records under the exemption for parliamentary privilege in … the Pati Act.”

She added that The Royal Gazette asked for an internal review of the decision, which was carried out and the refusal of disclosure was upheld in May 2019.

An independent review by the Information Commissioner was later requested.

The report said: “In July 2019, while the Information Commissioner’s review was ongoing, the joint select committee published its final 146-page report on the events of 2 December 2016.”

Ms Gutierrez wrote that the Pati legislation allowed a public authority “to deny public access to records if their disclosure would, or could reasonably be expected to, be an infringement of parliamentary privilege”.

She added: “A record that falls within the exemption … does not have to be disclosed under the Pati Act, even when the balance of the public interest may favour disclosure.

“Although parliamentary privilege is not defined in the Pati Act, it is a well-established constitutional doctrine that affords individual Members of Parliament, as well as Parliament collectively, certain privileges and immunities.

“In essence, the doctrine of parliamentary privilege protects the constitutional role and independence of Parliament.”

The report highlighted: “A key aspect of parliamentary privilege is each House’s ‘exclusive cognisance’ of its own affairs.

“This means that each House has the right to manage its own affairs and to exercise sole jurisdiction over its own proceedings.

“The exemption for parliamentary privilege in the Pati Act protects this exclusive cognisance by recognising that each House of Parliament has the right to control publication of its proceedings.”

It said that the Legislature submitted that the rest of the records requested were exempt from disclosure because they related to closed deliberations by the JSC.

But she added that “the exemption for parliamentary privilege is not applicable to records over 30 years old”.

The report said: “This means that for important historic events, such as the 2 December 2016 protest, the passage of time would disallow a public authority from relying on the parliamentary privilege exemption in the Pati Act to deny access to the full records.”

It added: “Parliament’s right to manage its own affairs and to exercise sole jurisdiction over its own proceedings does not mean that Parliament operates in secrecy.

“Parliament has published extensive information related to its proceedings, including the procedures and final reports of its various committees.”

A statement released by the Information Commissioner’s Office yesterday said that it was the first time the commissioner had addressed the parliamentary privilege exemption.

But Ms Gutierrez highlighted that “not every record relating to Parliament will fall within the parliamentary privilege exemption”.

The statement added: “The Information Commissioner emphasised that under the doctrine of parliamentary privilege, Parliament is accountable to its collective conscience, and ultimately, to the public who elect its members.”

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Published December 30, 2020 at 8:00 am (Updated December 30, 2020 at 8:48 am)

House pepper-spray incident records to stay under wraps

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