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Judge rules against Information Commissioner over access to records

Puisne Shade Subair Williams (File photograph)

The Information Commissioner does not have the right to examine all records held by public authorities, a judge has declared.

Puisne Judge Shade Subair Williams issued her ruling – the first in Bermuda to consider the extent of the Information Commissioner’s powers – in a case involving payments from the public purse to former premier Ewart Brown.

The judge found that Information Commissioner Gitanjali Gutierrez went beyond her legal powers when she issued summonses to the Ministry of Health and the Solicitor-General to allow her to view documents concerning the payout, which eventually totalled $1.2 million.

Mrs Justice Subair Williams quashed the summonses and said the notion that the court should permit Ms Gutierrez to continue her practice of “examining any and every single record which is the subject matter of a review” was “respectfully … misguided”.

The matter stems from a public access to information request from The Royal Gazette for a December 2017 agreement the Government made with Dr Brown’s two medical clinics to provide them with compensation for financial losses after fees for diagnostic scans were slashed.

Dr Brown had received $600,000 in taxpayers’ cash at the time of the request in February 2018.

The ministry disclosed more than 300 pages of redacted records in response to the request but refused to release some records on the grounds they were confidential documents “obtained or created” by the Attorney-General’s Chambers.

The Gazette asked Ms Gutierrez to review the decision, prompting her to ask the Ministry of Health to allow her to view the records.

The commissioner issued the summonses after her request was refused.

Mrs Justice Subair Williams said because the Public Access to Information Act 2010 did not apply to certain records, including those obtained or created by the Attorney-General’s Chambers, it was clear the commissioner did “not possess a right of examination” over those documents.

The judge found in favour of Kathy Lynn Simmons, the Attorney-General, who had sought the judicial review.

Mrs Justice Subair Williams made clear the distinction between exempt records, which are governed by the Pati Act, and records listed in section four of the Act as not falling “within the application of the legislation”.

She said the latter were “not governed in any way by the Information Commissioner“ and the records about Dr Brown’s settlement fell into that category.

The judge wrote: “ … no public authority can be compelled by the Information Commissioner to produce any record to which the Pati Act does not apply.”

Public authorities listed in section four, alongside the Attorney-General’s Chambers, are the Human Rights Commission, the Ombudsman, the Department of Public Prosecutions, the Justice Protection Administrative Centre, the Department of Internal Audit and the Financial Policy Council.

Records obtained or created by those entities while carrying out their statutory functions don’t come under the Pati Act, but records relating to their general administration do fall within the legislation.

Craig Rothwell, representing the Information Commissioner, said at a hearing in December that if the Attorney-General’s lawsuit was successful it “would effectively enable a public authority listed under section four … to self-certify what they consider to be an exempt record under section four”.

He said: “This is a point of principle. Does section four allow public authorities to say ‘this is what I consider to be excluded’?”

Mr Rothwell said the effect of preventing the Information Commissioner from checking that public authorities had correctly judged which records fell outside Pati was “to drive a carriage and horse through the structure of the Act”.

But Paul Harshaw, for the Attorney-General, claimed the Information Commissioner would be the “most powerful person in Bermuda” if her argument that she could require the records to be disclosed to her was correct.

Neither Ms Gutierrez nor Ms Simmons responded to a request for comment yesterday.