We think everyone can agree that it would make little sense to grant Tucker’s Point Resorts (TPR) an SDO to build houses and condos on environmentally-protected lands if the decision-makersMembers of the Legislaturehave not been given all relevant information to make an informed decision.We also think everyone can agree that it would make little sense to grant an SDO if, in any event, TPR is going to be placed in receivership in a year or two.So it is critical that Members of the Legislature be given the audited financial statements and all other relevant information before deciding whether the granting of the SDO is in the best interests of the people of Bermuda. Unfortunately, that’s not happening.The Bermuda Environmental and Sustainability Taskforce has respectfully pointed out, both in private correspondence and later in public statements, that the Minister is under a fiduciary duty to disclose all relevant information, including the financial statements of the financially-troubled applicant, to Members of the Legislature.The Minister has not only refused to do so, but through his spokesperson, has publicly made clear that he takes great exception to the suggestion that he has in any way failed to meet his fiduciary duty.So who is right, and how best do we move forward?The reason there is confusion as to whether the Minister is legally required to disclose all relevant information to the Legislature is that under the old system, where the Minister was the sole person authorized to decide whether the SDO should be granted, he was not required to make financial and other information public.And often the Minister (i.e. Minister Roban’s predecessors) didn’t. So there is precedent under the old system for withholding information.The Minister apparently relied on that precedent when he refused to disclose TPR’s financial records and other relevant information requested by BEST and Members of the Legislature, stating that such information was not the Minister’s to provide. The Minister, through his spokesperson, argued that the release of such information would be improper in the same way that public disclosure of an individual’s medical records would be improper.Unfortunately, it appears that the Minister has either not received legal advice on this matter, or received advice that is flawed. Both the common law and common sense dictate that the person who is authorized to decide whether the SDO should be granted must receive all relevant information to make that decision.Since the Members of the Legislature are now the decision-makers, all relevant informationwhich would definitely include the audited financial statements of a financially troubled applicantmust be given to them. That has not happened.The Minister, as the government official that holds the relevant information, is required by his fiduciary duty to make sure the new decision-makers receive all relevant information. To date, he has failed to do this. Is this wrong? Yes. Does that make him a bad person? No.This is a new process and, unless a person is a lawyer, it is understandable that he might instinctively rely on the old precedent to determine what things he can, can’t, should or shouldn’t do. Luckily, this whole matter can be quickly clarified if someone in the Attorney General’s Office would simply check the law on this to confirm what we’re saying is correct (the law is clear here), and then give the Minister and all other participants instruction on what is proper procedure under the new system.We believe that advice will not only confirm what we’ve said above (the Minister must fully disclose to the Legislature) but it will also say that the public does not have the right per se to the information; however, the Minister can, if he so chooses, provide that information to the public or simply inform the applicant (in this case TPR) that it either release the information to the public or the application process will not proceed.But what the Minister can’t do is either (i) withhold the information from the new decidersthe Members of the Legislature or (ii) tell the public that all relevant information has been released to the public when it has not.As a last point, we would add that this opinion is being put forward to better ensure that this new process for granting an SDO is done in a legally correct manner. It is not intended to be a springboard from which government critics can launch an attack. There is a learning curve here and all of us are on it.Let’s not crucify the Minister just because he got part of the process wrong while he was trying to balance the interests of TPR with those of the wider community. Let’s simply insist that he meet his fiduciary duty by providing Members of both the Senate and the House with the financial statements and other relevant information before they are asked to decide whether the SDO is in the best interests of the people of Bermuda.If he wishes to also make that information available to the general public, then all the better, for what is true democracy but the full and free flow of information coupled with the unfettered right to express your views.Kevin Comeau is an advisor to Bermuda Environmental and Sustainability Taskforce