Bermuda's proposed freedom of information law would give the public scant access to the real workings of government, according to lawyer Timothy Marshall.

The draft public access to information (PATI) bill says records would be exempt from disclosure if they related to the "deliberative process" of public bodies, including central government, Government House, quangos, the corporations of Hamilton and St. George and parish councils.

Mr. Marshall, an expert on constitutional and human rights law, said he interpreted the phrase as a kind of catch-all clause which could lead to little information of any importance actually seeing the light of day.

"The public will not be able to access information in any government department if the record relates to some deliberative process.

"You can have the boring stuff, such as statistical information, departmental reviews (if they are conducted) and reasons for decisions (if they are given), but you are not permitted to see how the particular department went about reaching a particular decision or arrived at a particular policy."

The exemption appears at section 30 of the draft legislation and is subject to a public interest test, which means Government "may" release information if it deems that the public interest would be better served in doing so.

But Mr. Marshall, a senior partner at Marshall Diel & Myers, said if the law was really aimed at opening up government to taxpayers the word "may" needed to be replaced with "shall".

"The 'no access' blanket covers every single government department, quango and municipality," he said, adding that it would prevent, for example, a homeowner finding out why planning permission was refused or an employer knowing why a work permit application was rejected.

Mr. Marshall was also critical of the bill's lack of retroactivity, which means it only applies to information created after the date the legislation goes into effect.

[JUMP]Policy analyst Kimberley McKeown, from Government's Central Policy Unit, told this newspaper that the bill was "forward looking" for practical purposes and to protect individuals who gave information to public bodies in the past "on the understanding that it was confidential".

"Certainly, the goal of transparency underpins the legislation, but it is something that we actually have to deliver," she said, adding that Ireland's FOI<\p>law was the same.

But Mr. Marshall said: "All of those arguments pale in comparison to the value and importance of giving people in Bermuda access to their history and, in particular, the important history of how government has functioned in the past."

That view is backed by overseas freedom of information experts, including Charles Davis, executive director for the National Freedom of Information Coalition in the US, and Toby Mendel, from global human rights organisation Article 19.

Mr. Mendel said: "The vast majority of laws are retroactive; I only know of one, apart from the Bermuda proposed law, which is not.

"The reason is simple: the principle of openness does not depend on when the information was created and the production of information by officials should not change once an FOI law is adopted."

Mr. Davis added: "It's a flaw. Making it non-retroactive is quite problematic in that it makes the entire historic examination of Bermuda impossible through FOI."

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l PATI under the microscope