The highly debated Public Access to Information Act (the "Act"), which represents a monumental change in how information held by the Bermuda public authorities can be accessed and obtained, became law on 10 August 2010.

The purposes of the Act are to place more information in the public domain, to increase the transparency and accountability of public authorities, to keep the public informed of activities of public authorities, and to give a right of access to information held by public authorities.

However, extensive carve outs and procedural requirements make it difficult to predict if the Act will effect its bold promise.

The benefits of having this type of legislation in Bermuda outweigh the arguments against having it. The Act allows both Bermudian citizens and residents alike to ask prudent questions of their Government with the expectation that forthright and equally prudent answers will be given. In this vein I would encourage everyone to read the Act, to become familiar with it and to form an opinion of it.

Although it is law the Act will not come into operation until a future date appointed by the Minister.

The appointed date is not yet known, although recent press reports indicate that it might be up to three years before the law is in force.

Under the Act a Bermudian or a resident of Bermuda, upon paying a fee, may request and be given access to any record held by a public authority. No reason is required for a request and the public authority should assist with any request completely, accurately and in a timely manner. In addition the identity of the person making the request should be kept confidential unless the requester agrees otherwise.

A request must be in writing and addressed to the public authority most likely to be holding the relevant record. Accordingly, the request should clearly identify the record so as to enable the public authority to find it.

Upon receiving a request, the public authority should decide within 28 days whether to grant or refuse the request in whole or in part and if granted, specify the manner in which the right of access to the record concerned is to be given. A public authority may decide to refuse a request if:

¦ the record does not exist or cannot be found after reasonable steps have been taken to find it;

¦ the request does not enable the public authority to identify the record;

¦ the request would, due to the size and nature of the records involved, require an examination of such number of records as to cause substantial disruption to the other work of that authority;

¦ law requires publication of the record within three months of the request;

¦ the request is frivolous or vexatious (as determined by the head of the public authority);

¦ the information is already in the public domain or is reasonably available to the public; or

¦ the fee has not been paid.

Every record held by a public authority is to be available unless it is an "exempt record". Exempt records are those:

(a) which would adversely affect the health and safety of an individual;

(b) with personal information relating to someone other than the requester where that person has not given consent for the information to be disclosed;

(c) containing sensitive commercial information unrelated to the requester where the original information provider has not consented to disclosure;

(d) received in confidence;

(e) containing Cabinet documents;

(f) that undermine Ministerial responsibility;

(g) that undermine deliberations of public authorities;

(h) that undermine or affect operations of public authorities;

(i) reasonably expected to have a serious adverse effect on the financial interest of Bermuda or of Government to manage the national economy;

(j) prejudicing or undermining national security, defence and international relations;

(k) containing information relating to the Governor's responsibilities and communications with the United Kingdom;

(l) reasonably expected to prejudice law enforcement;

(m) subject to legal professional privilege; or

(n) prohibited from being disclosed by any other legislation

Although these are wide ranging carve outs there are two ways by which an exempt record can be accessed. First, with the exception of (b) and (n) above, a record will not be exempt after 30 years from the date of its creation. Second, the Act provides that certain records are subject to a "public interest test" which determines if on balance the public would be better served by the disclosure rather than the non-disclosure of that record.

If a request for access to a record is refused there is a right of appeal, in writing, to the Information Commissioner. The Commissioner may attempt to have the matter resolved through mediation or, alternatively, may make a decision to affirm or vary the decision of the public authority or make such an order as he deems appropriate.

The decision of the Commissioner is binding on all persons affected by it. Any person aggrieved by the Commissioner's decision may apply to the Supreme Court for a final review of that decision.

Despite the wide ranging and extensive carve outs and exemptions within the Act, it is hoped that officials and the Information Commissioner will embrace the bold aspirations of the Act and carefully consider in each case if the public would be better served by disclosure rather than the non-disclosure of the information requested in each instance.

Jerome Wilson is an Associate and a member of the Telecommunications Technology and Intellectual Property Team within the Corporate and Commercial Practice Group at Appleby. A copy of Mr. Wilson's column can be obtained on the Appleby website at www.applebyglobal.com.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.