Public access to information: a review

PATI became law in August 2010 but did not come into operation until April 2015. As of March 31, of the 104 applications for review received by the Information Commissioner’s Office, 36 are pending, with the remaining applications closed or resolved.

The team at the ICO is headed by the Information Commissioner.

The Act gives every person who is a Bermudian or a resident of Bermuda the right to be given access to records held by a public authority, with its purpose being to:

give the public the right to obtain access to information held by public authorities to the greatest extent possible, subject to the exceptions that are in the public interest or for the protection of the rights of others;

increase transparency and eliminate unnecessary secrecy, regarding information held by public authorities;

increase the accountability of public authorities;

inform the public about the activities of public authorities, including the way they make decisions; and

have more information placed in the public domain as a matter of routine.

The Commissioner does not receive PATI requests for review in the first instance; instead these are initially made to the relevant public authority that holds the information that is the subject of the request.

Upon receipt of a request, the public authority has six weeks during which to issue a decision on the request, and when this period expires, the requester has six weeks during which they may ask for an internal review of the decision by the public authority. Only after an internal review has been requested and carried out (or not, as the case may be), can the requester approach the ICO for a review of the public authority’s decision.

Once a request is made, the Commissioner may attempt to resolve the matter through mediation or, following investigation into the request, decide to affirm or vary the decision of the public authority, or make such other appropriate decision. Although the right to request information exists, there are various exemptions on which public authorities may rely for refusing requests:

the record does not exist or cannot be found after reasonable steps have been taken to find it;

the request does not enable the public authority to identify the record;

the request would, due to the size and nature of the records involved, require an examination of such number of records as to cause substantial disruption to the other work of that authority;

law requires publication of the record within three months of the request;

the request is frivolous or vexatious (as determined by the head of the public authority);

the information is already in the public domain or is reasonably available to the public; or

the fee has not been paid.

All records held by a public authority are available unless they fall into an “exempt record” category, which are those:

which would adversely affect the health and safety of an individual;

with personal information relating to someone other than the requester where that person has not given consent for the information to be disclosed;

containing sensitive commercial information unrelated to the requester where the original information provider has not consented to disclosure;

received in confidence;

containing Cabinet documents;

that undermine Ministerial responsibility;

that undermine deliberations of public authorities;

that undermine or affect operations of public authorities;

reasonably expected to have a serious adverse effect on the financial interest of Bermuda or of Government to manage the national economy;

prejudicing or undermining national security, defence and international relations;

containing information relating to the Governor’s responsibilities and communications with the United Kingdom;

reasonably expected to prejudice law enforcement;

subject to legal professional privilege; or

prohibited from being disclosed by any other legislation.

In addition to providing for access to public records, the Act requires public authorities to publish information statements containing, amongst other matters, a description of the structure and organisation of the authority, a description of the records held by that authority, and the name of the person within that authority designated to deal with requests under the Act. Currently, all public authorities listed on the ICO website are in compliance with this requirement.

As the public becomes more aware of its rights under PATI it is anticipated that the number and types of requests made will evolve. With this the role of the Commissioner and the ICO will become increasingly important to adjudicating interpretations and requests made by members of the public to public authorities.

This column should not be used as a substitute for professional legal advice.  Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.