Information Commissioner orders Pati search
A ministerial headquarters was told to carry out a reasonable search for documents in response to a Pati request made 18 months ago.
Gitanjali Gutierrez, the Information Commissioner, ordered the Ministry of Finance headquarters to comply by August 16.
The original application — made by The Royal Gazette in November 2021 — was for copies of correspondence over a period of more than four years between the Minister of Finance and Gencom, a Miami-based investment firm.
A spokeswoman for the ministry last week said Pati requests “that prove to be onerous, time-consuming and burdensome exercises only serve to do the public a great disservice”, especially when resources could be spent overseeing government business.
She added that the public authority was disadvantaged by not having a dedicated information officer.
Ms Gutierrez’s findings summarised that an internal review decision by the ministry HQ denied access to records under section 25(1)(d) of the Pati Act because the Government “had ongoing negotiations concerning the Fairmont Southampton hotel”.
It added: “During the Information Commissioner’s review, the ministry headquarters acknowledged that, prior to denying access to its records, it had not searched to locate responsive records.”
It said that in 2019 an affiliate of the company acquired Westend Properties Limited as part of its purchase of the Fairmont Southampton hotel, which was closed in 2020 for renovations and has not yet reopened.
It added: “Although Fairmont Southampton is a private company, the Government has been involved with its owners and managers on several issues, such as a Westend Properties guarantee, redundancy payments for its more than 700 hotel employees, and redevelopment-related tax and custom duty rebates and relief.
“With this background in mind, the Information Commissioner notes that the applicant has been seeking information on the topic through Pati requests since January 2021.
“This decision finds that the ministry headquarters’ repeated failure to have met its obligations under the Pati Act 2010 for this Pati request has been detrimental to the Bermuda public’s right of timely access to public records about the Minister of Finance’s communications with Gencom and connected persons.”
The request made by the Gazette sought “copies of all correspondence” between the Minister of Finance related to Gencom and its subsidiaries, founder Karim Alibhai and representative Chris Maybury from July 18, 2017.
Both David Burt, the Premier and a former finance minister who has since resumed the position, and Curtis Dickinson, who stepped down from the finance post in February 2022, were named.
Correspondence between individuals was requested “whether or not it relates to Gencom activities”.
Deadlines were missed by the ministry HQ for an initial decision to the request and a response to an internal review.
Upon independent review, the Information Commissioner ordered a decision by April 19, 2022.
The ministry headquarters then said the records were exempt on the basis of the Act’s “commercial information” section.
An independent review requested by the Gazette led to the latest decision.
Ms Gutierrez’s finding said that in an update on August 24 last year, “the ministry headquarters explained that actually it had not searched to locate records that would be responsive to the Pati request”.
It added: “Prior to this discussion, the ICO had expected the ministry headquarters would be providing its records to enable this review to progress.”
A finance ministry spokeswoman told the Gazette last week: “As the ministry submitted as part of this process and has consistently emphasised, Pati requests that prove to be onerous, time-consuming and burdensome exercises, only serve to do the public a great disservice, particularly when resources and time could and should be spent on overseeing government business.
“Furthermore, this request is a duplicate of one made to the Cabinet Office, and as such has now seen two key areas of Government required to cease core functions and attend to this matter.”
She said the finance ministry received a series of requests that were “broad in scope”.
The spokeswoman added: “One request sought volumes of information spanning from 2017 to 2021.
“This was unreasonable and broad.
“The onerous requests demanded countless hours of research and it should be noted that:
• The ministry was disadvantaged by not having a dedicated information officer to focus the time and resources needed to address the magnitude of requests
• The demands of the 2023-24 budget preparation were the primary priority, and resources were focused on that process
• Information was sought from individuals no longer serving in Government
• Information requested was exempt under section 25(1)(d) of the Pati Act because their disclosure would prejudice highly sensitive negotiations“
The spokeswoman said: “Government is fully committed to the tenets of transparency and openness when providing access to information; and the Ministry of Finance stressed that it sought to comply with the requests for information, so much so that an individual had to be engaged purely to manage Pati requests.”
She added that access to information systems in other jurisdictions are managed to make sure they do not hinder the delivery of public services or become public officers’ core function.
The spokeswoman said: “The ministry maintains that it has been as compliant as reasonably possible with the Pati process.”
Ms Gutierrez’s decision noted that “the records of former employees and other individuals, which are held by a public authority (electronically or in hard copy), continue to be institutional records managed by the public authority”.
The finding said that a search for records should be “skilfully structured”, for example by using "keywords, parameters and operators”.
It added: “The Information Commissioner highlights for the ministry headquarters that the applicant made an express offer to discuss any concerns if their Pati request was ‘too wide or unclear’.
“The Information Commissioner also recognises that the ministry headquarters has raised concerns that processing this Pati request may be burdensome.”
The decision said section 16(2) of the Act required a public authority to offer help to the applicant “to amend the request in a manner that avoids” a denial based on the opinion that granting the request would unreasonably interfere with or disrupt other work.
The Information Commissioner ordered the finance ministry headquarters to conduct a reasonable search to locate records responsive to the Pati request, under the supervision of the ICO, and to meet the requirement of section 16(2) if necessary.
She annulled the ministry HQ’s internal review decision and ordered the public authority to issue a new initial decision.