Information Commissioner Gitanjali Gutierrez is to challenge a court ruling which found that she did not have the right to examine all records held by public authorities.

The judgment, issued by Puisne Judge Shade Subair Williams at the start of this year, stated that some records were “not governed in any way by the Information Commissioner“ and public authorities could not be compelled by the commissioner to produce them.

The legal case was sparked by a public access to information request to the Ministry of Health from The Royal Gazette seeking records involving payments from the public purse to former premier Ewart Brown.

The Information Commissioner has appealed the ruling and a panel of judges at the Court of Appeal is due to decide on the matter after a hearing next week.

The Gazette’s Pati request was for a December 2017 agreement the Government made with Dr Brown’s two medical clinics to provide them with compensation for financial losses after fees for diagnostic scans were slashed.

Dr Brown had received $600,000 in taxpayers’ cash at the time of the request in February 2018. The payments eventually totalled $1.2 million.

The ministry disclosed more than 300 pages of redacted records in response to the request but refused to release some records on the grounds they were confidential documents “obtained or created” by the Attorney-General’s Chambers.

The Gazette asked Ms Gutierrez to review the decision, prompting her to ask the Ministry of Health to allow her to view the records.

The commissioner issued summonses to the Ministry of Health and the Solicitor-General after her request was refused.

That led Attorney-General Kathy Lynn Simmons to seek a judicial review in the Supreme Court to have the summonses quashed.

Ms Simmons was successful in the legal fight, with the judge stating that Ms Gutierrez went beyond her legal powers when she issued the summonses.

Mrs Justice Subair Williams said the notion that the court should permit Ms Gutierrez to continue her practice of “examining any and every single record which is the subject matter of a review” was “respectfully … misguided”.

The judge said because the Pati Act 2010 did not apply to certain records, including those obtained or created by the Attorney-General’s Chambers, it was clear the commissioner did “not possess a right of examination” over those documents.

The ruling made clear the distinction between exempt records, which are governed by the Pati Act, and records listed in section four of the Act as not falling “within the application of the legislation”.

Mrs Justice Subair Williams said the latter were “not governed in any way by the Information Commissioner“ and the records about Dr Brown’s settlement fell into that category.

The ruling was the first in Bermuda to consider the extent of the Information Commissioner’s powers.

The Ministry of Health disclosed more records related to the payment to Dr Brown to The Royal Gazette in September, in line with a decision issued in August by the Information Commissioner.