Top civil servants and police chief rack up Pati breaches
Eight high-ranking public servants have committed a “serious statutory breach” of the Public Access to Information Act this year by not giving decisions to those requesting records.
The failures by top civil servants, including at the Cabinet Office, the ministries of finance, home affairs, education, youth and public works, and by the Commissioner of Police, are detailed in decisions issued by the Information Commissioner’s Office.
A spokeswoman for the Government acknowledged the concern but emphasised that public officers had to contend with a heavy workload on top of meeting deadlines for information requests.
The ICO told The Royal Gazette in a statement that there had been a “recent increase” in the number of legally binding orders it had to issue to compel heads of public authorities to release overdue decisions.
The statement said that this signalled a “need for renewed commitment from public sector leadership”.
It added: “The Information Commissioner remains dedicated to ensuring that the standards of accountability and transparency in Bermuda are not eroded by administrative silence.”
Its recent decisions have included reminders about the need for heads of public authorities to comply with the 2010 Act and issue internal review decisions in six weeks, regardless of circumstances.
In one case, investigative counsel Kentisha Tweed told the Permanent Secretary at the Ministry of Home Affairs that being new to the job and going on leave did not enable, under the law, extra time to complete an internal review.
In another, Ms Tweed told the Ministry of Education’s permanent secretary: “The statutory obligation to complete the internal review within six weeks does not stop when an officer is on leave.
“Adequate cover, acting appointments and other good administration steps must be taken by public authorities to ensure they meet their statutory obligations on time.”
The ICO statement said: “A public authority’s failure to issue an internal review decision within the mandatory six-week period, as set by section 43(2) of the Pati Act, is a serious statutory breach.
“While administrative and resource constraints may exist across public authorities, responding effectively to Pati requests within the statutory time frame is mandatory and cannot simply be set aside when challenges arise.”
It added: “The Information Commissioner continues to maintain that access delayed is access denied.
“These institutional failures act as a barrier to transparency and can effectively render a requester’s rights illusory if deadlines are not strictly monitored.”
The statement said delays often stemmed from “administrative factors such as resource limitations or co-ordination gaps, rather than overt bad faith by public authorities”.
However, it added that when “authorities remain silent, the information sought often becomes stale, losing its relevance and utility for the requester’s needs and for timely public transparency.”
A government spokesman acknowledged yesterday there had been delays in making some information public, but emphasised the heavy workload of public officers.
“The Public Service works daily to deliver a wide range of essential services that support Bermudians and those living and working in Bermuda, from financial assistance and health inspections to planning applications and fire and rescue response. Delivering these services remains our core priority.
“We also recognise the role that transparency and access to information play in maintaining public trust, and are committed to upholding the intent and requirements of the Pati Act.
“But at the same time, it should be stressed that public officers are managing a consistently high volume of requests and responsibilities. Last week alone, as an example, the Government received nearly 100 media queries, each requiring input from technical officers, department heads and, in some cases, permanent secretaries. Across ministries and departments, there are also multiple active Pati requests, typically four to five per area, alongside parliamentary questions and other statutory obligations.
“Responding to Pati requests, particularly those that are complex or wide-ranging, requires careful review and coordination. In a resource and time constrained environment, this can impact response timelines despite best efforts.
“The Government acknowledges these challenges and continues to explore ways to strengthen capacity and improve consistency in responses, including consideration of additional support mechanisms to assist public authorities in meeting their obligations under the Act.”
The Pati Act requires information officers at public authorities to issue initial decisions about whether or not to release records within six weeks of getting a request, or 12 weeks if they request a deadline extension.
Requesters can then ask heads of public authorities, under s.43, to internally review initial decisions or failures to issue decisions. The heads must respond in six weeks, with no extension allowed.
The recent increase in failures by public authority heads has prompted Information Commissioner Jason Outerbridge to streamline the procedure and delegate powers to authorised ICO officers for failure-to-decide reviews.
The recent breaches included five cases where public authority heads failed to issue internal review decisions within six weeks and still did not issue them after prompting from the ICO.
Legally binding orders to compel decisions were then made by the ICO to the Financial Secretary and the permanent secretaries at the home affairs ministry, public works and environment ministry, and youth, social development and seniors ministry, as well as one other top public servant who has yet to be identified.
The ICO said none of the five matters “required judicial enforcement of the order”.
In the other cases, involving the Bermuda Police Service, the Ministry of Education and the Ministry of the Cabinet Office and Digital Innovation, the authority heads failed to meet the six-week deadline but issued decisions after ICO reviews got under way.
The Royal Gazette was the Pati requester in three of the recent breaches.
The ICO said it had issued 103 failure-to-decide decisions since the Pati Act came into effect in 2015, with the most recent two due to be published this week.
According to the Gazette’s analysis of the decisions, all but one of those decisions found the head of authority to be in breach of s.43.
More than half featured a one-two punch of information officers not issuing initial decisions in the statutory time frame and heads of authorities then not issuing internal review decisions about those failures within six weeks.
The worst offenders for s. 43 breaches appeared to be the Commissioner of Police (14) and the Cabinet Secretary (13).
The ICO’s 2024 annual report noted that the BPS received the most new Pati requests that year of any public authority by a wide margin: 93. The next was the Ministry of Justice, with 30 requests submitted to its headquarters and various departments.
A lack of resources for handling Pati requests was highlighted in the report by former Information Commissioner Gitanjali Gutierrez, who urged the formation of a centralised unit within the Government to alleviate the “significant burdens on public authorities” in relation to processing Pati requests.
David Burt, the Premier, said in December 2024 that hiring extra staff to ease the burden on Pati officers was off the table.
The Gazette asked the BPS for comment.
• To read the Information Commissioner’s response in full, see Related Media
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