The Cabinet Office has been ordered to release additional records about a rejected multimillion-dollar casinos deal, despite the company involved “vehemently” objecting to disclosure.

Information Commissioner Gitanjali Gutierrez said in a recent decision that the documents needed to be shared with The Royal Gazette, which requested them more than six years ago, by February 1.

Ms Gutierrez concluded it was in the public interest for certain records to see the light of day, although she found that the Cabinet Office was right to withhold others, either in part or in whole.

She wrote that the local company at the heart of the deal, MM&I, was justified in challenging the disclosure of some of the records but not others.

Her decision may shine a spotlight on the Government’s relationship with MM&I, a company that stood to potentially net tens of millions of dollars a year if it had been given a contract to provide a cashless gaming network management system for casinos in Bermuda.

It signed a memorandum of understanding with the One Bermuda Alliance government regarding its cashless product in December 2013, before casino gaming was allowed.

The agreement was highlighted in a special report by The Royal Gazette in October 2017. It was signed by the late Shawn Crockwell, who was tourism minister, and Mark Pettingill, then the Attorney-General, both lawyers.

Mr Crockwell later tabled legislation to legalise casino gaming, which was passed by the House of Assembly.

The two lawyers went on to represent MM&I — owned by Bermudians John Tartaglia and Michael Moniz — after they left government and went into private practice together.

The Royal Gazette asked the former Ministry of Economic Development and Tourism, then responsible for casinos, for records about the deal under public access to information in September 2017. Some records were released in response.

The Information Commissioner’s decision combined two reviews she conducted: one which considered The Royal Gazette’s appeal against 53 records being kept secret, in whole or in part, and one which looked at MM&I’s objections to the disclosure, in part, of 19 of those records.

The Cabinet Office argued against disclosure on various grounds, including in the case of three records, that they were shared in confidence and included e-mails sent by a Cabinet minister acting in a “personal, professional capacity”.

According to the ICO decision, the Cabinet Office submitted that: “Despite the lapse of time and the fact that the MOU between the Government and MM&I has been terminated, there is still much to be decided upon regarding the gaming sector/industry in Bermuda.

“The current climate is still potentially quite explosive.”

Ms Gutierrez found the “shared in confidence” exemption did not apply to the three records and that another exemption, concerning ministerial responsibility, did not apply to a fourth document.

Her decision revealed that MM&I "vehemently objected to the public disclosure of further records relating to it and its business“ on several grounds, including information received in confidence and adverse effect on commercial interests.

“MM&I stated that the previous disclosure of records relating to it as part of the initial response to prior Pati requests had resulted in severe personal stress to its principals, significant reputational damage and financial loss of business opportunity.”

Ms Gutierrez noted that personal stress “does not amount to commercial interests.”

In a 2021 decision about the same Pati request, she found that the public had a “strong interest” in understanding the “manner in which elected officials conducted business with a company that sought to provide services to the Government at the public’s expense”.

She reiterated that in the recent decision, noting a “strong public interest exists in increasing the public understanding of the relationships between the Government and private entities.

“This transparency allows the public to conduct a more informed and effective scrutiny on, for example, the management of conflict of interests and the procurement process.

“The former Minister of Tourism Development and Transport, as well as the former attorney-general were involved in the introduction of the gaming industry in Bermuda, as well as in the drafting and signing of the non-disclosure agreement and MOU with MM&I.

“They later became the legal representatives of MM&I in their private capacity.

“This begged the question of the nature of the relationships between MM&I, the then minister and the then attorney-general.

“Disclosure of their correspondence in the relevant records or parts of records will inform the public of the nature of their relationships, as well as the frequency and extent of their contacts before and during the procurement process.”

She acknowledged there was also a strong public interest favouring “confidentiality and honouring the duty of confidence in commercial settings” and that disclosure of records containing MM&I’s "proprietary technical or business information“ could give others a commercial advantage.

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ICO Decisions-46-47-2023-Cabinet-Office and MM&I.pdf