ICO orders Cabinet Office to respond to Gencom records review request
The Cabinet Office has been told to respond to a request for a review of records released about correspondence between the Premier and investment firm Gencom.
Gitanjali Gutierrez, the Information Commissioner, ordered the Government department to make a decision after The Royal Gazette asked for an internal review following a public access to information response.
She set a deadline of January 25, 2022.
The Gazette made a Pati request in January 2021 to ask for records of correspondence to and from David Burt, the Premier, in relation to Gencom – owners of the Fairmont Southampton and Rosewood Bermuda – its subsidiaries and named individuals.
The scope of the request was later narrowed to between correspondence from March 1, 2020 to March 1, 2021.
A response was received on September 21 and the e-mails covered from March 25 to October 16, 2020.
The Gazette requested an internal review in October but no decision was received inside six weeks of its receipt.
Ms Gutierrez wrote in a decision notice: “The Information Commissioner finds that the Cabinet Office failed to issue a decision on the applicant’s request for an internal review within the time frame set forth in section 43(2) of the Public Access to Information Act 2010.”
She added that “the Information Commissioner orders the Cabinet Office to provide a decision on the request for an internal review to the applicant in accordance with section 43 of the Pati Act, with a copy to the Information Commissioner’s Office, on or before Tuesday, January 25 2022”.
The notice said that the decision was filed with the Supreme Court, in line with the Act.
It added: “If the department fails to comply with this decision, the Information Commissioner has the authority to pursue enforcement in the same manner as an order of the Supreme Court.”
The notice emphasised: “This decision does not address whether a public authority has properly denied access to a record.
“Rather, it addresses the basic obligation upon a public authority to respond to a requester within the statutory time frame.”
Records received by the Gazette showed that Karim Alibhai, the founder and principal of Gencom, lobbied the Government for a delay in redundancy payments to staff.
He warned Mr Burt and some Cabinet ministers that lenders would not back redevelopment work with a payout to employees “looming”.
Mr Alibhai made his appeal months before severance packages that amounted to $11 million were paid to hundreds of Fairmont Southampton workers by the Government after US-based Gencom failed to stump up by the deadline of November 20 last year.
Gencom repaid the cash in February.
The e-mails also showed that, in June 2020, Mr Alibhai predicted that the two hotels would suffer losses of about $30 million by last spring “based on the adverse forecasts from each property post-pandemic”.
Copies of correspondence that were released to the Gazette included references to a memorandum of understanding, which was not included in the Pati response.
Its absence was part of the reason that an internal review was requested.
Ms Gutierrez’s decision notice said: “The Information Commissioner appreciates that, during the initial handling of the Pati request, the Cabinet Office continued to give the applicant an impression that their revised Pati request was being actively processed and that an initial decision was forthcoming beyond the statutory time frame.
“This good intention, though, on the part of the Cabinet Office and the applicant alike, did not alter the framework of the Pati Act and would have placed the applicant’s rights to review at some risk if an initial response to the Pati request had not been issued.
“Here, however, the Cabinet Office did issue an initial decision on 21 September 2021, and this is the relevant date for determining the applicant’s further rights to review.”
It added: “It is a matter of fact that the Cabinet Office did not provide the applicant with an internal review decision within the statutory time frame.”
The notice said: “The Information Commissioner also recommends that the Cabinet Office consider whether it is appropriate to apologise to the applicant for its failure to comply with the statutory time frame for responding to the request for an internal review.”
The Government did not respond to a request for comment.