Information Commissioner Gitanjali Gutierrez has criticised the Government for failing to give a “straightforward answer” more than four years ago to a public access to information request about an inquiry into the head of the island's child protection agency.

Ms Gutierrez said sworn evidence she obtained from a high-ranking civil servant confirmed her view that the request from The Royal Gazette, which asked for an alleged full report into allegations of misconduct against Alfred Maybury, the director of the Department of Child and Family Services, “cycled between public authorities unnecessarily”.

Ms Gutierrez, in a decision she will make public tomorrow, said: “This is of particular concern because the permanent secretary’s affidavit evidence in this review made it clear that a straightforward answer could have been provided to the [Gazette] in the first instance in the original response to the Pati request in January 2019, which could have included a more fulsome explanation from the Ministry of Legal Affairs headquarters to clarify any confusion within the public about the process for handling the misconduct allegations.”

Mr Maybury was suspended in August 2018 after being accused of ignoring allegations about DCFS staff mistreating children in care.

The Government later revealed he was also accused of not following official financial instructions.

Mr Maybury returned to work in January 2019 after the Government said a “thorough investigation” found the claims against him were “not substantiated”.

The Gazette’s Pati request to the legal affairs ministry was submitted soon after and refused in March 2019.

The ministry refused to say if the requested report existed in its initial response, claiming “to reveal such, on its own, would add unnecessary confusion to misinformation which [was] already present in the media and public domain”.

Ms Gutierrez said the public authority “relied on the fact that there was misinformation in the public domain about how the Government had handled the allegations, as a reason for not explaining matters more clearly when responding to the Pati request”.

The commissioner’s review found that only one inquiry – by the Department of Internal Audit – was conducted into the claims about Mr Maybury and the subsequent report was previously found by her to be exempt from disclosure under Pati.

But she said comments by some elected officials – including remarks made in Parliament by Premier David Burt in December 2018 about there being “two separate lines of inquiry, one with the Department of Internal Audit and one with the ministry itself” into “various matters at DCFS” – and other official government statements, “led the media to report things in a way that, in some respects, was a mischaracterisation”.

Ms Gutierrez wrote: “Even though official media statements were probably technically correct, when read alongside comments from some elected officials and coupled with the media’s own sources, the narrative became muddled.

“A Pati request was made in this convoluted context to seek clarity, and, unfortunately, the Pati request responses contributed to the confusion, rather than providing clarity.”

The commissioner said the Pati request “sought a record that was expected to detail the process taken by the responsible ministry to address allegations against the head of a department servicing some of Bermuda’s most vulnerable population”.

She added: “It should not have taken several Information Commissioner’s decisions for the Pati requester to receive a complete and accurate response on a matter of significant public interest.

“It raises a question of whether an opportunity was missed for the public authorities involved with this Pati request to have strengthened public trust by offering greater transparency at the outset of this process.”

The initial decision by Legal Affairs not to say if the report existed was overturned by Ms Gutierrez in 2021, when she told the ministry to issue a new decision which disclosed the existence or non-existence of the report.

The commissioner said then: “Keeping the existence or non-existence of the report confidential from the public does not allow the public to hold the ministry accountable.”

Mr Maybury’s wife, Gina Hurst-Maybury, the acting permanent secretary at the Ministry of Legal Affairs, issued a new decision, which said the record was not held by the ministry but failed to say if it existed.

Ms Hurst-Maybury transferred the Pati request to the Ministry of Social Development and Seniors, which refused it, on the grounds that the report did not exist.

In her new decision, Ms Gutierrez said the legal affairs ministry issued a supplemental decision which said the report did not exist only after she wrote to it about its “compliance” with her 2021 decision.

She concluded it had not been justified in transferring the request to the other ministry but was justified in refusing it on the grounds that the report did not exist.

In a second decision she will make public tomorrow, she found the social development ministry was justified in refusing the request for the same reason.

The commissioner took the unusual step during her review of requiring an affidavit from the permanent secretary who initially responded to the Pati request.

She said she placed “great weight” on the evidence of Marva-Jean O’Brien – not referred to by name in the decision – who said “the only record ever produced, which met the [record requested in the] … original Pati request, was the Internal Audit report”.

Ms Gutierrez wrote: “The Information Commissioner appreciates that the [Gazette], based on official statements alone, reasonably understood that the Government’s response to the allegation[s] … involved two separate lines of investigation on the director, one of which was conducted by way of the Internal Audit report. This was simply not the case.

“ … the allegation against the DCFS director involved one line of investigation, resulting in the final and full report by the Department of Internal Audit dated December 14, 2018.”

She said it was unfortunate that the social development ministry did not provide clarification during her review “about how to appropriately understand the parts of the Premier’s 2018 statement in Parliament” and a 2019 statement from the Ministry of Legal Affairs which referred to a “separate line of investigation”.

There was no response to a request for comment from the Premier and the social development ministry.

A Ministry of Legal Affairs spokeswoman said on Thursday: “While the [Information Commissioner] is entitled to her views, it is not in every instance that the ministry will support her decisions.

“In the present case, the ministry made its own assessment of the issues while acting with integrity.

“This was clearly acknowledged by the decision of the ICO who found in favour of the ministry and held that the ministry was justified in administratively denying the request.”

Download PDF File

ICO Decision 01_2023 Ministry of Legal Affairs and Constitutional Reform HQ.pdf

Download PDF File

ICO Decision 02_2023 Ministry of Social Development and Seniors Headquarters.pdf