Bermuda’s public access to information regime faces its biggest challenge since it was passed into law nine years ago.
The announcement by Lieutenant-Colonel David Burch, the Minister of Public Works, that he will not release the KPMG report into Sandys 360’s finances brings him and his government into direct conflict with Information Commissioner Gitanjali Gutierrez.
It’s likely now that the dispute will head to court. It has always been a paradox that politicians in Opposition are the staunchest defenders of freedom of information. It is remarkable how fast their tune changes when they come into government.
Indeed, former British Prime Minister Tony Blair said his biggest mistake was introducing freedom of information legislation in the United Kingdom. This from the man who brought Britain the Iraq war, which destroyed his credibility and premiership.
The Bermuda experience is similar. It is fair to note that the One Bermuda Alliance government first refused to release the KPMG report, requested by this newspaper in December 2015, on the basis that the Government had not commissioned it, so had no right to release it.
Colonel Burch has used the same reasoning. It’s also noteworthy that both the trustees of Sandys Secondary Middle School, who commissioned the report, and KPMG, which produced the document, have opposed its release on the basis that it was a private matter.
But was it?
In 2015, the operators of Sandys 360 refused to release the KPMG report to The Royal Gazette and referred the newspaper to the Government, saying the Government “had initiated the process”. Release of the report would clarify that contradiction, at the very least.
Much of the funding for Sandys 360 — at least $5.3 million — came from taxpayers. And the Government said last year it intended to buy the failed sports centre for a further $1 million, although that sale is not yet complete. There is also the question of a further $807,000 paid by accident to the sports centre, which has never been recovered.
The KPMG report, which was commissioned in the wake of the centre closing after four years in operation, was certainly passed on to the Ministry of Public Works and presumably was used in the ministry’s deliberations over whether to buy the centre, which now means that if the sale proceeds, the Government will own all of the land on which Sandys Secondary Middle School sits.
None of this means that the Government is wrong to spend a further $1 million, but the point is not whether it is right or wrong to do so, but that the public have the right to know what happened to their money, what other options were explored and all of the reasons for the centre’s failure.
Further, the public are entitled to know what due diligence and investigation were carried out before the subsidies began. Was this good money after bad or was there good reason to think that the centre could turn itself around?
Colonel Burch argued in the House of Assembly a week ago that all the necessary information was shared when the purchase of Sandys 360 was announced and approved in the House.
Three people spoke in that 2018 “debate” — Colonel Burch and Opposition MPs Trevor Moniz and Craig Cannonier. Colonel Burch went on to say that the OBA supported the decision, which it did. He appeared to suggest also that since both parties supported the decision, there was no need for further disclosure.
But that is not correct. The PLP and the OBA are not the only voices with a right to be heard in Bermuda, and the purpose of having an autonomous Information Commissioner is to ensure the public have access to information about how tax dollars are spent.
In this case, Mr Moniz and Mr Cannonier, in their former roles as Attorney-General and public works minister, would have had access to a great deal of information that was not in the public domain and may well have felt that they should not share it.
Beyond that, the public know very little about how Sandys 360 got into difficulty, other than the unsurprising explanation from Colonel Burch that its expenses exceeded its revenues, virtually from the beginning. But there was no information on what efforts, if any, were taken to set the centre on a more stable footing or why the government of the day subsidised it for four years.
There are, or should be, lessons to be learnt here.
Sandys 360 was apparently started with good intentions — to be a community centre in the West End — but failed. Without knowing how and why it failed, Bermuda runs the risk of repeating the same mistakes, at vast cost to taxpayers who are already paying plenty for the mistakes of the past decade and more.
There is the further and greater risk that if the Government is successful in defying this Pati order, it will be emboldened to defy more in the future. That the report may have been commissioned by trustees who are separate from government — and even that is not entirely clear — is not enough to say it is private.
The report was shared with the Government, which spent millions of dollars of public money subsidising the programme until the plug was pulled.
For these reasons, this newspaper urges Ms Gutierrez to ensure her order is enforced. The future of public access to information and the ability to hold governments in the sunshine of public scrutiny may depend on it.