Records on DPP appointment to be released

  • Ordering release: Gitanjali Gutierrez, the Information Commissioner, has ordered the release of information connected to appointments of the Director of Public Prosecutions in 2013 and 2015  (File photograph)

The Information Commissioner’s Office has ordered the release of records related to the appointment of a former Director of Public Prosecutions.

But the office has upheld a decision by Government House not to release other records because they are protected from disclosure under public access to information law.

Gitanjali Gutierrez, the Information Commissioner, said: “In considering the balance of the public interest, the Information Commissioner accepts the applicant’s arguments concerning the general public interest in transparency and the promotion of greater public understanding of the process or decisions of public authorities.

“It is essential, however, that public officials, have the ability to seek free and frank advice prior to making their decisions.”

Ms Gutierrez’s ruling, issued on January 24, came after an applicant asked for Government House records related to the appointment of the DPP in 2013 and 2015.

Cindy Clarke, a Bermudian and Deputy DPP, is understood to have been the only applicant to respond to the job advert in 2013.

She was appointed to take over from Rory Field, a work permit holder, subject to what George Fergusson, then Governor, said would be as a “suggested transitional period”.

But Mr Ferguson said the appointment became “untenable” after “certain subsequent developments”.

Mr Field agreed to carry on as DPP in December of that year. He was reappointed to the post in 2015 for a two-year term, but stepped down in February 2016.

He was replaced by Larry Mussenden, a Bermudian.

A Pati request was submitted in December 2015, after Mr Field’s reappointment, to ask for “all information and documentation on the selection process for the appointment of the Director of Public Prosecutions in 2013 and January 2015, including the number of candidates who applied for the role and the number who met the required criteria for the position”.

But Government House a month later refused to release the records because they contained personal information and information received in confidence.

It revealed after an internal review that there was only one candidate who applied in 2013 and four who applied in 2015, including Mr Field.

However, Government House refused to release other documents about the decision-making process.

The applicant appealed to the Information Commissioner, but Ms Gutierrez found some of the records were “outside the scope of the Act’s application”.

She said Government House accepted in its submissions that there may be a public interest in the recruitment process, but argued the records would also reveal personal information about the applicants.

Ms Gutierrez said: “Government House noted that disclosure of the records would provide further transparency about this process.

“Government House concluded, however, that this interest is significantly outweighed by the privacy interests of the individuals involved.

“It also emphasised that some of the people to whom the information relates had an expectation that the information would not be made public.

“This includes the candidates for DPP, as well as some of the individuals involved in the recruitment or interview process.”

Ms Gutierrez said the applicant maintained there was “overarching” public interest, particularly given the important role played by the DPP.

She said: “The applicant further submitted that public officers in public roles have fewer expectations of privacy and confidentiality compared to an external candidate regarding their candidacy for a senior post, such as the DPP.

“The applicant reasoned that the public had an interest in knowing why, despite a well-publicised succession plan to ensure appointment of a Bermudian, the candidate was deemed not able to take on the DPP role.”

Government House refused to disclose other documents on the basis that they fell under several exceptions, including that they represented information given in confidence and the Governor’s communications with the UK Government.

Ms Gutierrez upheld the refusal in the case of several of the records, which she said fell into the excepted categories, but ordered the release of many others, either in whole or in part.

She ordered Government House to disclose three documents and parts of another 43 documents by March 7.