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The public records that shed some light on December 2

Front line: a Bermuda Police Service officer targets protesters with pepper spray at the Reid Street gate to Sessions House during the December 2, 2016 protest (Photograph by Kevin Smith)

The infamous protest on December 2, 2016 and its aftermath prompted The Royal Gazette and others to seek out public records that might shed light on events.

The Public Access to Information Act had been in effect for about 20 months and had already been used by the newspaper to obtain a raft of documents about how the controversial airport agreement would work, which we published two days before the demonstration.

Here, in one place, we’ve collected the public records obtained through Pati in relation to the airport deal, the day of the protest, the settlement paid to protesters and the Police Complaints Authority and parliamentary inquiries. Not all our requests have been successful.

Also included here are decisions by Information Commissioner Gitanjali Gutierrez and other related documents in the public domain.

The airport deal

• The People’s Campaign used Canada’s freedom of information law to obtain correspondence about the airport deal.

The pressure group, which opposed the airport agreement with the Canadian Crown Corporation and its subcontractor Aecon, included the e-mails in a report, A Bad Deal for Bermuda, released in August 2016.

The Royal Gazette asked for the nine schedules listed in the airport agreement before it was approved by Parliament. The schedules were released on November 30, 2016 and we reported on them here.

We also asked for correspondence between the CCC and the Minister of Finance.

The request was rejected but in June 2019 the Information Commissioner ordered the Ministry to issue a new decision.

In December 2019, the Ministry released the first letter of agreement dated November 2014, the second letter of agreement dated February 2015, and the first, second and third amendments to the letter agreement.

• The Gazette submitted a Pati request to the Ministry of Finance for the legal opinion it obtained from Bennett Jones law firm on whether Bermuda needed a letter of entrustment from the UK to proceed with the deal.

The ministry rejected the request and the Information Commissioner later upheld the refusal but ordered the ministry to share the date of the advice (it was November 7, 2014).

It was later revealed in response to parliamentary questions that the negotiations entailed in the airport redevelopment ran up a tab of $4.1 million to Bennett Jones.

We also asked for correspondence between the Bermuda and British governments about the deal. The request was denied, on the basis that the records were exempt as they contained information communicated in confidence by a state.

Acting Information Commissioner Answer Styannes upheld the refusal in a November 2019 decision.

The protest

Bermuda Police Service released a redacted copy of its Captor spray policy to The Royal Gazette under public access to information not long after the December 2 protest, as reported here.

The newspaper also requested records showing how and when a decision was taken to deploy a police support unit to the grounds of Sessions House, including the operation order for the event.

We asked for correspondence between the BPS and anyone outside the BPS concerning that.

The BPS released a redacted operational order in January 2017. After a review, the Information Commissioner ordered police in October 2019 to disclose further records.

The BPS later released a less redacted “op order”, an 11-page public order tactical advisers log and event notes for the morning and afternoon of December 2. Our reporting on those disclosures is here.

The settlement

In October this year, The Royal Gazette asked the Ministry of National Security to provide a statement the national security minister was due to deliver in Parliament on February 15, 2019 on a financial settlement from the public purse to 28 protesters.

We also requested any communications concerning payments to the protesters, a list of the individual payouts (amounts and recipients) and records showing where the money came from.

The ministry released redacted e-mails from its comptroller and a list of the 28 payments, with the beneficiaries’ names redacted. The payout was for $225,000 and we reported on the disclosed records here.

The ministry asked for extra time to process the rest of the request and is due to respond with a full decision by January 12, 2022.

The Police Complaints Authority inquiry

• The independent PCA released its report on December 2, prompted by 26 complaints from members of the public, in August 2017.

The following February, 23 protesters launched a lawsuit against the authority, which was settled by the Ministry of National Security in February 2019.

The Gazette sought all records held by the PCA on the civil case but it rejected the request.

Ms Gutierrez in September this year found that most of the records were exempt from the Pati Act because they were created to comply with the instructions, orders or directions of the Supreme Court to carry out a judicial review.

She ordered it to release parts of two records, including e-mail correspondence.

The joint select committee inquiry

• In January 2019, the Gazette asked the Office of the Clerk of the Legislature for all records concerning the parliamentary joint select committee inquiry into December 2.

The office released a list of meeting dates but did not disclose other records, which we reported on here.

Ms Gutierrez upheld that decision in December last year, concluding that the office “was justified in denying access to the withheld records … because disclosure of the records would be an infringement of parliamentary privilege”.

The JSC released its report in May 2019.