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Airport legal advice to remain under wraps

  • Construction work taking place at the airport (File photograph by Akil Simmons)

The information commissioner has backed a decision by the Government to withhold legal advice related to the island’s multimillion-dollar airport redevelopment.

Gitanjali Gutierrez, in a decision made public on Monday, ruled the Ministry of Finance was right to deny disclosure of the legal opinion on the grounds that it was legal advice and was protected by legal professional privilege.

The ministry refused in April 2016 to release under public access to information a legal opinion from international law firm Bennett Jones on whether the Government needed a letter of entrustment from Britain to proceed with the airport deal with the Canadian Commercial Corporation.

It also refused to disclose some correspondence it had with the British Government about the airport contract.

The Royal Gazette had argued that there was significant public interest in the release of records about the $250 million deal.

But the information commissioner wrote that there was a “strong inbuilt public interest in protecting the openness in communications between client and lawyer”.

Ms Gutierrez said she was “not convinced” that disclosure of the legal memorandum would “contribute to the public’s understanding of the decision-making process surrounding the redevelopment project”.

She added: “Importantly, the Minister of Finance disclosed during the House of Assembly debate on November 28, 2014 that the legal advice concluded that no letter of entrustment was necessary.

“This information was not withheld from the public at the time of the controversy.

“The public is aware that the substance of the legal advice was not relied upon in practice as the Bermuda Government still proceeded to obtain an entrustment letter from the UK for good measure.”

But Ms Gutierrez ordered the Ministry to release the date the legal advice was given by February 11 to “provide the public with a fuller understanding of the Government’s decision-making process with respect to these matters of public administration, without compromising the principles underlying … lawyer and client confidentiality”.

The information commissioner also found that the Government was right to withhold a piece of correspondence with the British Government on the grounds that it constituted “international communications made in confidence”.

She said: “The information commissioner acknowledges that there is a significant interest in furthering the public’s understanding of a substantial investment of public money.

“The information commissioner is satisfied, however, that disclosure ... will not provide new information that meaningfully increases the public’s understanding of the project, nor would disclosure further public accountability.”

The Ministry of Finance at first released just four records to The Royal Gazette in response to the Pati request, three of which were already in the public domain.

The decision was appealed to the information commissioner’s office. The finance ministry released more records in October this year.

Ms Gutierrez said the ICO’s investigation into the decision had resulted in the ministry releasing to her three further records which were relevant to the Pati request.

The ministry has still to decide if those documents will be released and the information commissioner gave it until February 11 to do so.

A government spokeswoman said that it had seen Ms Gutierrez’s decision and would “take the appropriate actions as required by the Pati Act”.

To view the airport documents, click on the PDF link under “Related Media”