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Legal Affairs ordered to reveal if report on allegations against DCFS director exists

Alfred Maybury (File photograph)

The Ministry of Legal Affairs has been ordered to reveal whether a report on allegations of misconduct made against the head of the island's child protection agency existed.

Gitanjali Gutierrez, the Information Commissioner, insisted there was a public interest in the ministry disclosing if there was a report on the claims against Alfred Maybury, the director of the Department of Child and Family Services.

Ms Gutierrez said in a recent report: “Keeping the existence or non-existence of the report confidential from the public does not allow the public to hold the ministry accountable.”

She gave the ministry until September 3 to “disclose the existence or non-existence” of a report.

Mr Maybury was suspended in August 2018 after he was accused of ignoring allegations of DCFS staff mistreatment of children in care and of a failure to follow Government financial instructions.

He returned to work in January 2019 after the Government said a “thorough investigation” found the claims against him were “not substantiated”.

The Royal Gazette asked the ministry that month to release the “full report into allegations of misconduct” against Mr Maybury under the public access to information law.

But the legal affairs ministry refused to reveal if a report existed and claimed that to do so would “add unnecessary confusion to misinformation which is already present in the media and public domain”.

But Ms Gutierrez dismissed the ministry’s argument and said that officials had failed to specify what the misinformation was or provide any clarification to correct the misinformation.

She said the Gazette’s Pati request “presented the ministry with an opportunity to clarify the misinformation, if any, as well as to explain its general process when receiving complaints from members of the public about senior department staff, such as the director”.

Ms Gutierrez added that, apart from potential confusion, the ministry had not identified what harm, if any, would be caused by disclosing whether a report existed.

She said she was “not persuaded” by the explanation the ministry gave to support its claim that any report would be entirely exempt under several sections of the Pati Act.

Ms Gutierrez wrote: “Even if this assertion were accepted, the public interest would be better served, on balance, by disclosure of the existence or non-existence of the record instead of non-disclosure.”

She added that “the ministry was correct to state that the public interest test in the Pati Act is not guided by the curiosity of the public or the media”.

But Ms Gutierrez said: “The Information Commissioner disagrees, however, with the view that disclosure of the existence or non-existence of the record in question would only benefit the curiosity of the public or the media.

“There are strong factors present in support of the position that disclosure of the existence or non-existence of the record would serve the public interest better than non-disclosure.”

Ms Gutierrez said the Pati request asked for a report on an investigation conducted into the top official at the DCFS, “entrusted by law with important responsibilities relating to the welfare of children, one of the most vulnerable populations in Bermuda”.

She added the ministry confirmed in September 2018 that an investigation had been launched and said in February the next year that part of the investigation was done by the ministry and part by the Department of Internal Audit.

David Burt, the Premier, told Parliament in December 2018 that “investigations into various matters at DCFS are ongoing” and that Internal Audit and the ministry were involved.

Ms Gutierrez wrote: “These public statements appear to be in conflict with the ministry’s submission to the ICO that a review into allegations of misconduct was not a part of any separate disciplinary process at the ministry.”

She said other statements from the ministry and Kathy Lynn Simmons, the legal affairs minister, that referred to a single investigation and report added to the confusion.

Ms Gutierrez added: “There may well be an explanation for the apparent confusion – there is a public interest in clearing the matter up.”

The ICO in 2019 upheld a decision by Internal Audit to withhold the findings of its inquiry into Mr Maybury.

The Pati refusals can be found here.