ICO: police must make new decision on search warrant report
A policeman trying to make Bermuda Police Service disclose an internal report into a raid on his home has won a new decision in his favour from the Information Commissioner.
Gitanjali Gutierrez has told the BPS that the reason it gave last August for refusing to share the report with Pc Robert Butterfield was “not justified”.
She has ordered it to rethink its position and issue a new decision to him by June 11 “either granting access to the records or denying access to the records under an exemption in … the Pati Act.”
Pc Butterfield, who gave permission to The Royal Gazette to identify him as the public access to information requester, said: “It is a good result.”
A BPS spokesman said: “The Bermuda Police Service are working to meet the deadline as ordered by the Office of the Information Commissioner."
Pc Butterfield was under criminal investigation, along with colleague Sergeant Mark Monk, for allegedly causing disaffection in the Bermuda Police Service when the December 11, 2020 raid took place.
The inquiry was sparked after a leaked document about the divorce of former police commissioner Stephen Corbishley was e-mailed to the entire police service.
Both officers were later told they would not face any criminal charges in relation to the matter and both then sued the police for damages.
Sergeant Monk won a $200,000 settlement, plus his legal fees, from the BPS in March, along with an admission that the obtaining of the warrant to search his home was unlawful.
Pc Butterfield’s civil lawsuit continues. He said on Friday: “They did concede that the obtaining of the warrant was unlawful, we just cannot agree on a [settlement] figure and I think the amount offered is simply too low.”
He asked the BPS in a Pati request to disclose a report about the warrant written by Detective Chief Inspector Arthur Glasford, the head of the BPS’s professional standards department, and related correspondence with Darrin Simons, the Commissioner of Police.
The BPS was ordered to issue a decision on the request by the Information Commissioner last year after failing to meet the statutory Pati deadlines.
The police claimed in that decision that the requested records — the PSD report reviewing the residential search warrant and a March 1, 2023 e-mail from Mr Glasford to Mr Simons, attaching the report — were “related to the exercise of a judicial function or … had been obtained by the Attorney-General’s Chambers” and so were not subject to the Pati Act.
Ms Gutierrez found they did not relate to the exercise of a judicial function and said the BPS provided no evidence that the records were created or obtained by the Attorney-General’s Chambers.
Separately, in July last year, Pc Butterfield asked the BPS for e-mails about him between the police commissioner and the Governor during October 2021, the month that Mr Corbishley suddenly quit his post.
Mr Corbishley’s shock resignation, while he was under investigation for alleged gross misconduct in relation to complaints made by Pc Butterfield, was announced on October 1, 2021.
His deputy Mr Simons stepped up as acting commissioner, before officially taking on the top job the following March.
The Information Commissioner previously told the BPS to disclose the requested e-mails to Pc Butterfield by May 6.
It has now done so, sharing a thread which includes: a complaint Pc Butterfield made to Mr Simons about Mr Corbishley on August 29, 2021; Mr Simons’s acknowledgement the next day; the forwarding of the complaint by Mr Simons to the Governor late in the evening on October 1, 2021, and her response on October 4, 2021, when she expressed her concern that it took more than a month to reach her.
The records were redacted so the nature of the complaint was not revealed.
The Commissioner of Police failed to forward to the Governor a complaint about his predecessor for more than a month, according to records released under public access to information.
Darrin Simons sent the grievance about Stephen Corbishley to Rena Lalgie on the evening of October 1, 2021, just hours after Mr Corbishley quit the top job.
It had been sent to him by Pc Robert Butterfield on August 29, 2021 and he wrote: “I apologise for not sending it right away.”
In a reply dated October 4, 2021, the Governor wrote to Mr Simons: “ … I was very concerned that this has taken over a month for this to be shared with me, particularly as when we spoke on August 30 you: acknowledged that the Governor was the appropriate authority; were directed to share the allegation and agreed to do so; and said that you would inform the complainant that it would be brought to my attention.”
She went on to say that because it had been shared “after Mr Corbishley’s employment has ended, this isn’t really a matter for my consideration under the [Police] Conduct Orders”.
Ms Lalgie added: “Finally, I do hope that we can now move forward.”
Mr Corbishley was under investigation for gross misconduct, prompted by earlier complaints from Pc Butterfield, when he resigned. The Governor dropped the inquiry after he quit and refused to make public a report written by investigator Andrew Bermingham.
Mr Simons told The Royal Gazette: “Having initially alerted Her Excellency the Governor, I was due to follow up with the relevant e-mail.
“I was on leave at the time and, regrettably, I overlooked sending the email until the matter was brought up again.”
In November 2021, Pc Butterfield submitted a Pati request to the BPS for a copy of the notes recorded during the search of his home.
The BPS refused, citing various exemptions in the Pati Act, and Pc Butterfield asked the Information Commissioner to review the decision.
Ms Gutierrez found no reason for the notes to be withheld, but said the names, signatures and badge numbers of the officers who attended the raid should be redacted, as it was personal information.
She gave the police until last Wednesday to disclose the notes; they were sent to Pc Butterfield that day.
He said: “I did note they forgot to edit out the names. I guess that’s what happens when you … run down the clock.”
The BPS spokesman said there was an “oversight in responding which resulted in certain information not being redacted as it should have been, an oversight for which we apologise”.
The handwritten notes show the raid in Paget involved six detectives and a sergeant and lasted more than three hours, beginning at 8.45pm and ending at midnight, while family members were present.
Officers seized electronic equipment, including phones and a laptop, and extracted “network information” from an internet router.
Pc Butterfield said the search notes did not shed any new light, adding that he believed Mr Glasford’s report “is what killed their case”.
The police spokesman said: “The Bermuda Police Service is guided by the ruling of the Office of the Information Commissioner and has complied with the instructions given.”
• To view the released documents, see Related Media
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