ICO: police right to withhold promotions records
The Commissioner of Police was right to refuse to share records about a promotions process with a participating officer, it has been found.
Information Commissioner Gitanjali Gutierrez wrote in a recent decision that Darrin Simons was justified in withholding the documents on several grounds, including that disclosure could have a “significant, adverse effect on the performance” by the Bermuda Police Service of their management functions.
The officer made a public access to information request for the records in February, having sought promotion within the service.
They asked for the “rank order” assigned to them by members of a selection panel and all comments made about them by panel members.
They also sought senior management meeting minutes where a new promotion policy implemented by the police commissioner was discussed and agreed upon, and the implemented promotion policy.
The requester told the Information Commissioner’s Office that their request was vital to their future career development.
The BPS rejected the request for the rankings and comments on the grounds that the relevant records were exempt because they contained information that could affect management functions if disclosed, as well as personal information and information obtained in confidence.
The rest of the request was refused on the grounds that the records did not exist.
Mr Simons was asked to review the decision and he upheld it in May, after which the officer asked the ICO for an independent review.
Ms Gutierrez accepted the BPS’s submission that the new promotion policy was in draft but not yet formally implemented and that there were no written records about it.
The requester of the records said they were “very disappointed in the ICO review”.
The officer told the Gazette that they asked for records showing the number between one and six that each panel member had awarded them, along with any comments in support of the ranking.
“There were 25 on the committee so I would be getting 25 numbers.”
They said the idea that they would be able to identify individual panel members and their comments “defies rationale”.
“I had asked for the numbers and comments for my own personal development. It is clear that transparency in the promotion process does not exist.”
“The Commissioner of Police, as the most senior person in the BPS, and the person with responsibility for implementing the new promotion policy, confirmed that there were no records taken of meetings between senior management related to the new promotion policy,” she wrote.
“Discussions were verbal and then put into practice by outlining the process in a service standing instruction for specific promotion processes, such as in this case.”
The Information Commissioner added that she found “no basis to dispute the submission of the Commissioner of Police, being the Bermuda Police Service’s most senior public officer, in relation to the rigour of the search carried out …”
Ms Gutierrez also accepted that it was right to withhold the records containing the selection panel’s rankings and comments.
She wrote that the information was not intended to be shared with the candidates and the BPS were “justified in reasoning that disclosure of it could have undermined the integrity, objectivity, fairness and confidentiality of the promotion process, where panel members had participated with the express expectation that their ranking and comments would not be disclosed to the candidates — either once the promotion process was concluded or through other means.”
Ms Gutierrez added: “The public interest in disclosure must be balanced with the public interest in maintaining exemptions.
“In this case, there was a strong public interest in ensuring that the BPS remained able to conduct promotion processes with objectivity and integrity, as it was in the public interest that those being promoted within the BPS were being recommended for promotion in accordance with a fair and objective process and subject to a transparent evaluation by selection panel members.
“It was also in the public interest to ensure the BPS’s organisational harmony and that professional relationships were maintained, which would ensure that the BPS could fulfil their broader functions in society.”
The Information Commissioner said once the island’s Personal Information Protection Act was fully enacted from next year, people would have the right to request their personal information from public authorities and some private organisations and those requests would not be subject to the Pati Act.
She wrote: “Any disclosure of a requester’s personal information under Pipa will be to the individual requester only and, therefore, the tests for disclosure will differ from those under the Pati Act, which is intended to be used for seeking the disclosure of records to the public.”
Two sources, who asked not to be named, raised concerns in The Royal Gazette in December last year that the new promotions policy was a “popularity contest” because members of all levels of the service were asked to rank participants.
Mr Simons responded that the changed process would ensure more informed and fairer decisions and was introduced after a “truly unprecedented” level of internal consultation.
The Gazette has asked the BPS for comment.
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