Landowner told records of his ‘fraud’ case sealed for 50 years
A landowner who shared information with the Commission of Inquiry into Historical Land Losses about an alleged “fraud” involving his property was told that records on his case would be sealed for 50 years.
Robert Moulder told the Supreme Court that he objected to the committee’s decision to restrict access to the material, including his witness testimony, claiming that he was the only person who went before the panel to be dealt with in such a way.
“That was the main point, that I was being treated with extreme bias,” he told Assistant Justice Hugh Southey, who was hearing his application for a judicial review of the Commission of Inquiry’s decisions in its 2021 report.
That report, made public last December, promised that “all documentary evidence submitted by claimants and witnesses will be made accessible to the general public via the Department of Archives”.
But the judge noted that Mr Moulder, in an affidavit, described how access was denied in an e-mail from the archives after his former wife asked for disclosure of the records on his behalf.
Judith Chambers, who acted as her former husband’s adviser in court, was told by an archivist on June 9 this year: “Unfortunately [the records] are among a series of files that will remain closed for 50 years.
“This decision was made by the commission.”
Mr Justice Southey said it appeared that the commission had exercised its right, under its own rules, to restrict access to material but added: “The reasoning is unclear.”
The judge said the archives, in its e-mail to Ms Chambers, seemed to be invoking a section of the Public Access to Information Act which makes records exempt from disclosure if releasing them is prohibited by a statutory provision.
He said he wanted to know what entitlement there was to know the reasons for the secrecy, adding that the question of how the court could assess whether there were “good reasons or bad reasons for keeping this case confidential” was “complex, to put it mildly”.
Delroy Duncan, lawyer for the commission, said it may not have given the instruction to seal the file.
“The e-mail seems to proceed on the basis that the assumption is an instruction was given that the material shouldn’t be disclosed,” he said. “Obviously, if it can be that might assist in all sorts of ways.”
Mr Duncan said he would take further instructions from his clients on that issue and others raised by Mr Moulder if the plaintiff was given leave for a judicial review.
The Commission of Inquiry was established by David Burt, the Premier, in 2019 to look into historical losses of property and make recommendations on compensation and justice for any victims of wrongful action.
Mr Moulder gave evidence before it in February 2021, describing then how he had a paper trail of evidence to prove that his Sandys property was taken from him illegally — and how lawyers, real estate agents and banks played a role in the land grab.
He was made to give some of his testimony behind closed doors by interim commission chairman Wayne Perinchief after commissioners were told that it could lead to criminal charges.
Mr Moulder then recused himself from the commission proceedings as he said he was not getting a fair hearing.
The commission’s report said: “The CoI does not share the view that having heard the proceedings in camera, the claimant was denied a fair hearing.
“Importantly, the fact that the proceedings were not broadcast did not constrain the commissioners from carrying out their sworn duty, nor did it render the process unfair as the commissioners are the persons before whom claims were to be brought.”
The commissioners said that Mr Moulder’s case was an “example of a land grab”.
But they concluded that they could not inquire into his matter because they were “not empowered in this or any case to review or to consider any material touching and concerning any matter(s) where the Supreme Court and/or the Court of Appeal of Bermuda had rendered a judgment, as these matters are not within the COI’s jurisdiction or mandate”.
Mr Moulder, representing himself, told the Supreme Court last week that though he recovered his land through civil proceedings, the purpose of him sharing his case with the commission was to highlight “how property was transferred into someone else’s deeds [and] how they were able to secure mortgages”.
He said: “The issue was how was my land taken from me in the first place. That’s the fraud.”
Mr Moulder’s application for a judicial review of the CoI’s decisions is one of three such lawsuits before the Supreme Court.
Mr Justice Southey reserved judgment on whether to grant leave to Mr Moulder for a judicial review.