Bermuda could soon follow countless developed democracies around the world by passing a law giving taxpayers the right to access information held by public authorities.

But just how much openness would the proposed public access to information (PATI) law unveiled by the Premier on October 15 actually bring? The Royal Gazette asked those in the know to assess some of the pros and cons of the bill.

Ever wished you could read internal government documents about the 1977 riots which rocked Bermuda? Or find out more about the behind-the-scenes negotiations surrounding the closure of the Island's US military bases?

How about discovering what Cabinet really thought of Operation Cleansweep and the controversial departure of Police Commissioner Colin Coxall? Or learning why Pro-Active Management was given the $68 million contract to build the new Berkeley Institute?

A list of all the information concerning past government activity which the public might rightly like to see could go on forever — but under the proposed new PATI bill it is doubtful that such records would ever see the light of day.

Unlike almost every other freedom of information law in the world — Ireland being the notable exception — the legislation being proposed for Bermuda would not shine a light on the Island's past.

That, according to critics, is a crucial flaw, utterly at odds with Premier Ewart Brown's assertion that the bill is "designed to make central government, and the larger public sector, more open and accountable, by giving the public the legally enforceable right to request and access information".

Cabinet Office policy analyst Kimberley McKeown explains the thinking behind the bill being "forward looking" i.e. only covering information created after it becomes law.

"It's really an issue of practicality," she says. "We have lots of records and there is an issue in terms of record management. One issue is being able to provide records in a timely manner."

The other reason she cites is that people may have given information to government in confidence in the past with the expectation that it would never be released.

The draft bill includes a long of list of records which would be exempt from release, including information received in confidence.

But Ms McKeown claims that exemption would not be enough to protect information given historically, since some of it might not meet a "legal standard" of having been given in confidence.

Opposition MP John Barritt says such concerns are precisely why the bill provides for an independent Information Commissioner "to evaluate such claims and make decisions based on the facts as the Commissioner finds them to be".

He adds: "A casual, first reading of the act shows that it sets out guidelines that are to be employed where such confidences are claimed and involved. The Commissioner can also make decisions with respect to unreasonable and onerous claims."

Local lawyer Timothy Marshall argues that neither issue justifies the lack of retroactivity. "There is a whole host of important historical events and this legislation does not give a right to access," he says.

"The Government wants to ensure that everything that has gone on before is kept under lock and key unless they on their own terms decide to release the information. Denying public access or erecting obstacles to these historical records is contrary to the wishes and reasonable expectations of the public."

UBP MP Grant Gibbons agrees that Government needs to widen the scope of the bill. "It's taken a very long time to bring draft legislation forward and a piece of legislation that has been watered-down with major exclusions will not serve the best interests of the community or help our reputation as a quality business jurisdiction."

Journalism professor Charles Davis, executive director of US-based National Freedom of Information Coalition, says the release of past information is vital for the scrutiny of present public policy.

"When you are looking at current policy, often times looking six to eight months back is where the lynchpin documents reside. It's not just the stuff from the 1920s [that's important], it's the stuff from 2007.

"It's a flaw and I think if you are going to commit to openness and transparency, you have to commit."

The bill's "forward looking" factor is not its only potential flaw, according to those who have studied it. Like many other FOI acts, it excludes current Cabinet deliberations and makes them available for release after 30 years.

But Mr. Marshall worries about section 30 of the draft legislation, which he interprets as giving all government departments the same protection from scrutiny. The section makes exempt any information relating to the deliberative processes of public bodies, subject to a public interest test.

"The situation is made worse by the fact that such records — unlike Cabinet — never as a matter of right become available to the public," he says. "The end result is that our proposed legislation gives the people of Bermuda significantly less access to government than they might otherwise have thought."

Ms McKeown says an Information Commissioner — who would hear appeals when requests for information were refused, apply the public interest test and have the power to order records to be released — would provide a sufficient check and balance.

She says: "The Information Commissioner does have the right to make binding decisions and that's important because that's not in every legislation.

"If a complaint gets to the Information Commissioner and a complaint is investigated, the public authority has to be able to demonstrate that it was not in the public interest [to release information]. They have to show that they made a substantive effort to consider the public interest."

Mr. Barritt, UBP spokesman for legislative and public administration reform, is pleased that the Information Commissioner will be entirely separate from government and answerable to Parliament, much like the Ombudsman or Auditor General.

"The post holder will not be subject to the direction or control of any other person," he says. "This is critical. I note too, that the funding for the office — and support staff — will be under the Legislature and this too, is critical and welcome, and I see too, that his reports, special or otherwise, will be laid before the Legislature — again much like the Auditor General."

Journalist and newspaper columnist Tom Vesey agrees. "The position is clearly set up to be independent. So long as the Commissioner is someone who really believes in freedom of information it will be a very powerful thing indeed. I think a lot must ride on who the first Commissioner is."

Mr. Marshall sees real transparency in the bill with regard to personal information. PATI would give individuals the right to see information held about themselves and make amendments where it is inaccurate.

"It's a really good thing that people will have the ability to access their personal records to ensure that it is accurate and fair," he says. "There is a common belief that government has always — and this is UBP and PLP — maintained dossiers on various people.

"No record should be maintained by the Government for a political reason. This legislation ought to nip that in the bud if it does exist."

But Mr. Marshall wishes the proposed law included a section to protect civil servants from sanctions if they release in good faith information on wrongdoing or threats to public health, safety or the environment.

Such "whistle-blower" protection is included in an FOI law passed by Cayman in 2007 but does not appear in Bermuda's draft bill.

Mr. Marshall says the law should also make clear that requesters have recourse in the courts if their application for information is rejected by a public authority and, on appeal, the Information Commissioner.

Ms McKeown responds that it's unnecessary to include that in the law. "For any legislation, there is the possibility of judicial review. It could go as far as the Privy Council. It's standard practice."

She also doesn't see a problem with the fact that the legislation does not dictate who will determine, in the first instance, whether information should be released, meaning it could be a Cabinet Minister.

The Central Policy Unit, she explains, did research and consultation in many other jurisdictions, and found it was "completely standard" for public authorities to decide for themselves who would make decisions on requests.

"The public authority will make a determination in terms of how it's determined," she says. "That's all I'm going to say on that topic."

But Mr. Davis raises concerns about allowing a politically motivated individual to be the arbiter of whether a document is made public.

"Whether a document is exempt or not should be based on the law itself, not based on the interpretation of somebody who has a keen interest in making documents secret," he says.

Mr. Vesey is happy that the bill gives protection to people requesting the information and thinks the list of exemptions seem reasonable.

But he cautions: "There are a number of issues we need to pin down more as the proposed legislation is debated. Like the extent to which the release of records can be prevented if they are a matter of Cabinet discussion or making records exempt if its disclosure could undermine 'free and frank discussion' between Ministers or between Ministers and public officers.

"You can see how that could be used to prevent just about any information being disclosed. And that will be the instinct of just about any Cabinet Minister. This could be the weak link."

Ms McKeown says these debatable issues are exactly why Government is conducting public consultation on the bill. "We welcome comments and views," she says. "We appreciate people giving their comments and feedback."

• Submissions on the draft bill — which can be found at www.gov.bm — should be sent to pati@gov.bm or the Cabinet Secretary, Cabinet Office, 105 Front Street, Hamilton HM12.

What would PATI mean for Bermuda?

• Members of the public would have a legally enforceable right to access information held by public authorities, subject to exemptions.

• Requesters could be charged a fee, yet to be decided.

• The law would cover documents held by central government and all public authorities, including Government House, quangos, the corporations of Hamilton and St. George and parish councils.

• Public bodies would have to issue information statements to give taxpayers a better understanding of what they do.

• The Premier would be responsible for PATI — and would have the power to exempt public bodies from it.

• Authorities would have 28 days to respond to requests for information.

• The law would not apply to information created before it went on the statute books.

• You would have the right to amend records containing your own personal information if it was inaccurate.

• Public authorities could not withhold information purely because the release of it could cause embarrassment.

• Cabinet documents could be released after 30 years.

• Information relating to the deliberative process of public authorities, including opinions, advice, recommendations and the results of consultations, would be exempt from PATI.

• Third parties would have the right to be consulted if a request for information about them was made.

• An independent Information Commissioner would be appointed to hear appeals when requests were refused.

• Requesters could apply for a judicial review if access to records was denied.

• The law would not come into effect until two or three years after being passed in Parliament.