Information Commissioner calls for review of secrecy provisions
Information Commissioner Gitanjali Gutierrez has called for an “urgent” legislative review of Bermuda’s “older secrecy frameworks” to enable public authorities to be more transparent.
The commissioner spoke out after issuing a decision that upheld a refusal by the Department of Child and Family Services to release records about overseas placements for children in care.
The Royal Gazette made a public access to information request for the records in 2019.
After it was rejected, Ms Gutierrez conducted a review and found the public authority was justified in denying access because it was prohibited by other legislation, which predated the Public Access to Information Act 2010, from releasing the records.
The commissioner said in a statement that the outcome of her review was “inconsistent” with the purposes of the Pati Act and highlighted a pressing need to deal with “longstanding concerns about the impact of secrecy and confidentiality provisions that were in place before the Pati Act took effect”.
In her decision, she said she was unaware of any “follow-through” by successive governments on an initial commitment made by former premier Ewart Brown 13 years ago, when the Act was passed, to tackle older secrecy provisions in other legislation to ensure they did not neuter Pati.
And she added there was “no sign of any intention on the part of government to address the issue.”
Ms Gutierrez said: “This decision illustrates the need for a legislative review of Bermuda’s older secrecy frameworks — which was promised but not yet delivered on — to prevent more unintended consequences.”
She added that she would welcome the opportunity to consult on an effort to harmonise the Pati Act in such a way.
The Gazette’s Pati request was for records about the department’s psychoeducational programme for children in care, which places them in overseas institutions.
The request focused on Utah and was submitted after the death of a Bermudian teenager at a facility in that state.
The department shared that 40 children were sent to Utah between 2014 and 2019 at a cost of more than $8 million.
But DCFS’s Pati officer said contracts between the Government and Utah-based residential facilities could not be disclosed as they were exempt under section 37 of the Pati Act “because they reveal information which DCFS is statutorily prohibited from disclosing under section 11 of the Children Act”.
Ms Gutierrez agreed in her decision that section 11 had no “provisions creating a gateway to public disclosure” relating to the director of DCFS’s statutory duties.
She noted the Gazette had made clear it was not seeking personal or confidential information about children in care and that the newspaper raised concerns that the department was interpreting section 11 of the Children Act as meaning no information could be released under Pati.
Ms Gutierrez wrote: “.. the plain reading of section 37 of the Pati Act and section 11 of the Children Act leads to an outcome that appears contrary to the purpose of the Pati Act.
“It allows for unnecessary secrecy surrounding the care, protection and treatment of one of our country’s most vulnerable populations.”
She recognised the efforts of public officers at DCFS to respond to freedom of information requests but added that the "impact of section 37 of the Pati Act and section 11 of the Children Act may eliminate the capacity of the department and the public to promote transparency and further accountability on these matters.
“This unintended consequence makes section 37 ripe for legislative attention to further the purposes of the Pati Act.”
Ms Gutierrez said concerns about section 37 were longstanding and were first raised in a 2005 discussion paper on Pati and again during the parliamentary debate on the legislation in 2010.
She said in a 2021 report that she “touched on this precise concern: that the plain language of section 37 would unintentionally transform a confidentiality provision, originally intended as a condition of employment to prevent unauthorised disclosures by employees, into a statutory prohibition preventing the public authority from disclosing records that may be appropriately disclosed in response to a Pati request”.
Dr Brown told Parliament the Government would “move as quickly as we can to review other legislation”, but Ms Gutierrez said that had not happened.
She added: “Unfortunately, we are not aware of any follow-through on this commitment by the government of the day or its successors and we are therefore by default doing what the former premier promised would not happen: we are simply waiting until the impact of each provision on the public right of access is felt, as evidenced by … numerous decisions of the Information Commissioner …”
Ms Gutierrez wrote: “Even having now been felt, however, there is still no sign of any intention on the part of government to address the issue.
“The harm that results from this ongoing issue is that the Pati Act’s legislative scheme is effectively undermined in a substantial way.”
The Royal Gazette has asked Cabinet Office minister Vance Campbell, who is responsible for Pati, if a review is planned. There has been no response yet.
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