Gambling industry documents can’t be kept secret - ICO
Secret records of a rejected multimillion dollar casinos deal must be released by the Government in the public interest, according to the Information Commissioner.
Senior civil servants and the Bermudian company involved in the agreement argued against the release of the documents.
But Gitanjali Gutierrez, the Information Commissioner, ordered that they must be disclosed by September 7.
She agreed with The Royal Gazette, which asked for the records under public access to information almost four years ago, "that significant public interest concerns weigh in favour of disclosure“.
Ms Gutierrez said the public had a “strong interest” in understanding the “manner in which elected officials conducted business with a company that sought to provide services to the Government at the public’s expense”.
The documents concerned the Government’s relationship with MM&I, an island company that stood to potentially net tens of millions of dollars a year if it had been given a contract to provide a cashless gaming network management system for casinos in Bermuda.
The company signed a memorandum of understanding with the former One Bermuda Alliance Government about its cashless product in December 2013 – before casino gaming was allowed.
The agreement was highlighted in a special report by The Royal Gazette in October 2017, where it was revealed that the MOU was signed by the late Shawn Crockwell, who was tourism minister, and Mark Pettingill, the Attorney-General, both lawyers.
Mr Crockwell later tabled legislation to legalise casino gaming, which was passed by the House of Assembly.
The two lawyers went on to represent MM&I – owned by Bermudians John Tartaglia and Michael Moniz – after they left government and went into private practice together.
Ms Gutierrez wrote: “As The Royal Gazette pointed out, the public has a substantive question concerning how, prior to the enactment of the Casino Gaming Act 2014, MM&I facilitated the signing of a non-disclosure agreement and MOU with the Government.
“It further begs the question of the nature of the relationships between MM&I and the relevant elected officials at the time, particularly given that the former Minister of Tourism Development and Transport and the former Attorney-General then became the legal representatives of MM&I in their private capacity.
“Disclosure of the records may shed some light on the relationship between MM&I and the Government prior to the enactment of casino gaming legislation.”
Mr Pettingill told The Royal Gazette this week that he remained a business partner of Mr Tartaglia, a former neighbour of his, in relation to a company not involved with gaming or casinos.
He also represented MM&I in their submissions to the Information Commissioner’s Office, in which the company opposed the release of the documents.
Mr Pettingill said yesterday that MM&I’s cashless gaming system was a "sensible proposed initiative to ensure Bermuda was going to be fully compliant and avoid problem gaming and money laundering issues which arise with cash systems“.
He said: “There was an MOU and NDA, as per usual with business initiatives involving Government.”
The former Cabinet minister added: “Whilst I knew the people involved in the local company, the initiative had transparency, involvement, and knowledge of full Cabinet throughout and was subject to a formal and open Request for Qualification from Government.
“Ultimately, this initiative and related MOU was cancelled by Government. However, it appears to have now been adopted with a different group.
“I have represented MM&I in my private capacity after I left office, as is often the case with ministers that return to private practices. This was also obviously disclosed.”
The special report told how the Bermuda Casino Gaming Commission warned that individuals associated with MM&I’s partner firm, Florida-based Banyan Gaming, had earlier surrendered their gaming licences in two major gambling jurisdictions in the United States.
The commission insisted that could be “problematic” in relation to them being licensed in Bermuda and the MOU was eventually terminated on the advice of Richard Schuetz, who was then BCGC’s executive director.
Banyan, however, resurfaced and promoted its cashless gaming system at a Progressive Labour Party forum on “safe and responsible gaming” in May 2017.
Mr Tartaglia said in July 2018 that MM&I “no longer have any interest in participating in the gaming industry in Bermuda.”
The Government released 19 records to the Information Commissioner during her review of its refusal to disclose them to the Gazette.
Ms Gutierrez has now ordered that the majority be released, reversing an August 2018 decision by the acting permanent secretary at the former Ministry of Economic Development and Tourism.
The commissioner upheld a decision to withhold parts of some of the records on the basis that they contained personal information or, in the case of one document, information shared in confidence.
Ms Gutierrez also ordered the Cabinet Office, which is now responsible for tourism, to decide by September 7 whether to release 43 ministerial e-mails related to the proposed MM&I deal.
The e-mails were only searched for and found after her office launched its review.
Ms Gutierrez wrote: “The public authority has accepted that it did not conduct a reasonable search during the original processing of the Pati request, because it did not search the government e-mail accounts of the relevant former ministers.”
The Cabinet Office last night declined to comment.
According to the Information Commissioner’s decision:
* Records 1 to 4, 6, 11 and 12 are e-mail correspondence solely between public authorities.
* Record 5 includes an e-mail provided by MM&I but only addresses public policy, not MM&I’s potential provision of gaming network services.
* Records 7, 8 and 10 are e-mail correspondence involving MM&I that are "too far removed“ from the delivery of gambling programme services to be covered by a non-disclosure agreement the company had with Government.
* Records 14, 15 and 18 contain information about MM&I’s “cashless gaming equipment business solutions” and its efforts to market them to the Bermuda Government and others.
* MM&I provided records 14, 15 and 18 to the Government after the Government put out a Request for Qualifications as part of its public sector procurement process, and after the Pati Act came into effect on April 1, 2015.
* Records 14 and 18 were provided to the Government outside the RFQ process.
* Record 16 is the MOU between the Government and MM&I.
* Records 17 and 19 are timelines of events that contain information provided by MM&I.
* Some personal information in records 1 to 8, 10 to 12, and 14 to 19 should be withheld.
* Part of record 18 should be withheld because it contains information received in confidence.
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