CLD report on Pati Act
Human rights group: Lift veil of secrecy
• By the end of last year, 546 Pati requests had been made since the Act came into force on April 1, 2015.
• 133 new Pati requests were received by public authorities in 2018.
• The highest number of requests in 2018 were to the Bermuda Police Service (44) and the Ministry of Legal Affairs Headquarters (9).
• The Ministry of Legal Affairs got the most requests in 2017, with 18.
• 62 per cent of public authorities’ initial response to Pati requests granted access in whole or in part to the public records.
• The information commissioner received 31 new applications for an independent review of a public authority’s decision on a Pati request in 2018, a 41 per cent increase on applications in 2017.
• The ICO had 67 cases in 2018 and closed 28 cases, including 13 decisions issued by the information commissioner.
Source: 2018 Annual report of the Information Commissioner’s Office
A global human rights organisation has recommended making Bermuda’s public access to information law more robust, including by allowing some Cabinet papers to be disclosed and by lifting the “veil of secrecy over the work of the Minister of Finance”.
The Centre for Law and Democracy was asked by the Information Commissioner’s Office to review the Public Access to Information Act 2010 and compare it to other transparency laws around the world.
Its report, released yesterday, placed Bermuda’s law informally as 45th out of 123 countries assessed on the international Right to Know Rating (RTI).
The rating measures the strength of the legal framework for the right to access information held by public authorities.
The report said: “While this may seem a respectable score, in fact, it would be a lot weaker if the comparison were limited to laws of more recent vintage, since these laws tend to be a lot stronger.
“It would thus be appropriate at this time, some nine years after it was adopted, for Bermuda to do a review of the Pati Act and to consider amending it to make it stronger.”
Toby Mendel, CLD’s executive director, told The Royal Gazette: “We have read all of the national [right to know] laws in the world. Bermuda is at the top of the middle third. It’s not terrible but it could be a lot better.”
The report praised the Act for creating a “strong and independent oversight body” in the ICO but criticised a number of weaknesses, including limitations on making requests and the scope of exceptions which allow public authorities to withhold records.
The report said: “The Pati Act is relatively weak in terms of the regime of exceptions ...[this] is the most complicated part of any RTI law and yet it is very important since it determines which information shall be disclosed and which is secret.
“Getting the right balance here is important, since legitimately confidential information should be protected but an overbroad regime of exceptions can undermine the whole thrust of an RTI law.”
It added that international best practice was to make sure exceptions only protected legitimate confidentiality interests and information should be confidential only if its disclosure would pose a risk of harm to a protected interest and not just because information is “related” to a particular interest.
“Even where disclosure of information would pose a risk of harm, it should still be disclosed where the benefits of this — for example in terms of combating corruption or facilitating participation — would outweigh that harm (the public interest override),” the report said.
The CLD noted that the legislation protected from disclosure all records relating to Cabinet, including draft Bills.
“This assumes that everything which takes place in Cabinet meetings is by nature confidential, which is simply not the case, even though the laws of a number of Westminster-style democracies take this approach (while others do not),” said the report.
“A better approach is to protect the underlying interests involved here, such as the free and frank provision of advice and the integrity of policymaking processes, rather than to rule out entire categories of information.”
The report highlighted section 26A of the Act, which it said protected certain classes of records which “there is no need to protect”.
These included records submitted to the Minister of Finance about international tax agreements and “even any record which reflects any deliberation or decision at all of the finance minister, apart from where such records have been officially published”.
The report concluded: “This casts a broad veil of secrecy over the work of the Minister of Finance, which is simply not legitimate. Section 26A should be repealed or substantially amended.”
It also said it was against best practice for Parliament and its members not to be covered by the Act and that should be changed. The Act only covers the Office of the Clerk of the Legislature and the Office of the Parliamentary Registrar at present.
Other recommendations from the CLD included:
• making all exceptions subject to a public interest test, so records have to be disclosed if the benefits of disclosure outweigh any harm to a protected interest;
• outlining in the Act a wider range of benefits that Pati brings, such as combating corruption and helping citizens participate in public affairs;
• allowing the Pati Act to override secrecy provisions in other laws;
• limiting exceptions to “narrow and specific interests which can justify secrecy”;
• extending the Act to cover all bodies created by law or which take on a public function, as well as all of the activities of the judiciary and legislature, not just their administrative functions;
• allowing everyone to file requests, including legal entities, not only citizens and residents;
• giving consideration to requiring public authorities to publish information about contracts valued at “substantially” lower amounts than $50,000, such as $10,000 or “even less”; and
• reducing the “almost absurdly high” photocopying fees of $1 a sheet to five cents per page.
Bermuda’s public access to information law came into force four years ago and more than 500 Pati requests have since been made.
Former Attorney-General Phil Perinchief was tasked by the Cabinet Office with reviewing the Pati Act last year, as part of a 12-month, $92,000 contract.
The Royal Gazette obtained his reports, through a Pati request, last week.
Mr Perinchief recommended a centralised body for handling Pati requests and said ministers should be immediately notified when certain requests were submitted, including about international tax agreements and Cabinet documents.
A government spokeswoman said in January that Mr Perinchief’s review was “currently being considered”.
• To see the reports and reviews, click on the PDFs under “Related Media”