Information Commissioner ‘rejects’ Pati fee plan
The Information Commissioner, Gitanjali Gutierrez, said yesterday she rejected the Government’s plan, announced in last week’s Budget, to introduce fees for public access to information requests.
A statement from her office said neither she nor the public were consulted about the decision, adding: “The Information Commissioner rejects a fee that will create a barrier to public access to information and make Bermuda an outlier in the international community.”
The statement noted that according to the Centre for Law and Democracy, which has evaluated freedom of information laws in 136 countries, only 14 national laws expressly require a fee for requests for public records.
Ms Gutierrez said the fee could jeopardise the anonymity of requesters and any lessening of Pati rights should only happen after proper consultation with the public.
“The Government’s policy approach suggests that the changes impacting Pati rights are at risk of being developed behind a veil of secrecy, contrary to good governance and robust citizen engagement,” she added.
David Burt, the Premier and finance minister, said in his Budget Statement that the fee would be “nominal” and was being introduced because of the expense of fulfilling Pati requests. He said that one request cost more than $300,000 to process.
Ms Gutierrez said the proposed nominal fee was “highly unlikely to generate meaningful revenue for the Government” while creating “a real risk that it will take away everyday Bermudians’ rights to seek public records that are held on their behalf by public authorities”.
She added that the fee amount and estimated revenue had not been shared but the plan appeared to be aimed at reducing the number of Pati requests instead of "addressing existing needs for proper implementation of public authorities’ responsibilities under Pati“.
A government spokeswoman defended the move last night, saying both Britain and Canada permit fees for freedom of information requests depending on how much effort the requests may take.
The ICO said that there were 135 Pati requests to public authorities in 2021 and an estimated 150 last year, and once the fee amount was shared by the Government, the 2023-24 revenue could be calculated.
The statement said: “A new fee is very likely to reduce the number of requests made by individual Bermudians and residents.
“Because around 47 of 187 public authorities reported receiving Pati requests in 2022, a fee may result in an immediate, short-term benefit of a reduced workload for a quarter of our public authorities.
“Though the media’s Pati requests may generate widespread attention, everyday Bermudians and residents have been quietly making Pati requests about education policies, pension records, procurement documents, work permit concessions and more.
“During the first five years of the Pati Act, requesters seeking an independent Information Commissioner’s review were divided evenly between the media and the general public.
“If the new fee discourages everyday people from making Pati requests, public authorities may end up handling requests mostly from professionals, such as journalists and lawyers, who can bear the costs. Even this smaller number of requests may still require substantial work, however, and defeat the apparent purpose of imposing a fee.”
The statement said that the “uncertain benefits” from reducing the number of Pati requests could erode taxpayers’ trust in public authorities.
The Information Commissioner’s Office will host an event next week aimed at sparking discussion about the 2023-24 Budget.
Pati and the People’s Budget will feature Gitanjali Gutierrez, the Information Commissioner, with Jamel Hardtman in an interactive discussion about the budget, transparency and accountability.
A spokeswoman for the ICO said: “With a new budget year approaching, Parliament is preparing to debate and approve the 2023-24 Budget. What does the Budget mean for Bermudians and residents?
“Join this lively discussion to explore concrete ways people can use the Pati Act to hold the Government accountable for its decisions on public spending and the delivery of public services such as education, healthcare, transportation, small business development and more.”
The event is set to take place at 8pm on March 2 and be streamed live on YouTube and on the ICO website.
The statement also warned that unless fees were payable online, requesters could be required to pay at the Government Cashier’s Office in Hamilton during working hours, which would not be an option for everyone.
“Going to the Cashier’s Office raises another risk, because the Act requires a requester’s identity be kept confidential,” the statement said, adding that a 2021 ICO survey found that only 31 per cent of respondents felt confident that if they made a Pati request the public authority would protect their confidentiality.
“People announcing their intention to make a Pati request at the Cashier’s Office will not improve public confidence,” the ICO said.
It added that Bermuda, though one of the last jurisdictions in the world to introduce freedom of information, now had a “model law” that gave public authorities straightforward tools to deny Pati requests that were too burdensome.
It said that two ICO-commissioned reviews of the Pati Act in 2019 and 2020 by experts found that it provided a “robust legislative framework but challenges arose with its implementation and existing barriers to making a Pati request”.
The reviews recommended a more active role by leadership to implement the Pati Act, greater support and training for Pati officers, a modernised records management system and formalised procedures within public authorities for handling requests.
“Addressing these issues may be more effective in reducing public authorities’ burdens when complying with the Pati Act,” the statement said.
The government spokeswoman said Britain’s freedom of information and data protection laws allowed for the charging of fees “based on the number of people and hours it is likely to take to respond to a request under the Act”.
She said: “The UK considers how long it will take and how many people are likely to be required to work on the request. These considerations address determining whether a Department holds the information, locating, retrieving and extracting that information.
“In fact, in the UK, requests that are determined to take an inordinate amount of time to address can be declined unless better framed to enable a timely search and review of the requested information.”
She added that Canada’s Access to Information Act also prescribed an application fee for records in certain cases.
She claimed: “Far from being an outlier, Bermuda is catching up by setting fees in this area.
“As the Premier indicated in yesterday’s press conference, work often stops on critical government initiatives and core service delivery by the public officers who are mandated to meet deadlines under the Act or set by the Office of the Information Commissioner.”
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