ICO: fintech Pati request ‘cycled through’ too many reviews
A request for publicly held records about the island’s fintech sector has “cycled through” an “excessive” number of reviews by the Information Commissioner’s Office, according to a decision published this week.
Acting Information Commissioner LaKai Dill found that the Economic Development Department was right to refuse the request on administrative grounds, where the records did not exist or were held by another public authority.
However, she observed that the ICO had “seen this same Pati request cycled through five independent reviews”.
Ms Dill wrote: “For a request seeking records in support of official statements made over the years by elected officials and public officers on progress in Bermuda’s burgeoning fintech sector, this cycling was excessive.”
Two of the reviews involved the EDD, while three involved the Cabinet Office, where The Royal Gazette’s November 2022 request — for a list of all memoranda of understanding signed between the Government and digital asset or fintech businesses — was originally sent.
Both public authorities were ordered to respond to the request after they failed to in the statutory time frame.
The Gazette also asked for records on the staffing and budget of the Cabinet Office’s fintech unit and the number of companies based on the island as well as jobs in the sector.
The Cabinet Office transferred the request to the EDD in February 2023.
The department, which took on responsibility for fintech in November 2020, responded with a list of six memoranda of understanding.
It later added another two to the list, revealing for the first time the existence of two MoUs with Bahamian bank Deltec.
Deltec came under scrutiny by American authorities amid an investigation into international money laundering, but denied any wrongdoing.
Ms Dill noted in her decision that the Gazette referred the matter to the ICO in the belief there were more MoUs, owing to public statements made between 2018 and 2022.
The Acting Information Commissioner agreed the list was incomplete — pointing to memoranda signed with the Bitfury Group and Proof of Trust — but accepted the department did not hold the records.
She wrote that it would have been a “disproportionate step” for the EDD to have liaised with other departments for their records, though it could have been helpful in enabling a full list to be provided.
“Telling the applicant which other public authority might hold other MoUs, based on the department’s working knowledge, would have been appropriate,” added Ms Dill.
The Cabinet Office initially denied to the Gazette that it had any records of MoUs but was ordered by the Information Commissioner to rethink its decision, after which Cabinet Secretary Major Marc Telemaque revealed memoranda signed between 2017 and November 2020 included a secrecy clause to keep their existence a secret.
He wrote that the covenant meant the records were exempt from disclosure under the Public Access to Information Act. An ICO review of his decision is ongoing.
Regarding fintech job and company numbers, the EDD’s information officer initially told the Gazette “no such record” existed within the department.
She later pointed to a statement in March this year by economy minister Jason Hayward, when he said the fintech industry employed 35 staff, including 20 Bermudians or spouses of Bermudians, and that 28 financial technology companies had been licensed here since 2017.
Ms Dill accepted the department’s submission on its handling of those parts of the request which sought “lists that the department had no reason to create and maintain”.
On the fintech unit’s staffing, Ms Dill wrote that the department explained to the Gazette that “over its lifetime, the unit was staffed by officers reassigned from other areas of the public service, in addition to a paid consultant from 2020 to 2023, with the title chief fintech adviser, whose position became unpaid after 2023”.
She noted: “In its submissions to the ICO, the department emphasised that, in practice, there was no budget or staff allocated to the fintech business unit distinct from the department.
“Salaries for reassigned officers were recorded through the budget of each post holder’s original public authority.”
Denis Pitcher was chief fintech adviser but left the post early last year, citing business commitments, and will not be replaced.
The EDD told the Gazette that the only year when the fintech unit had an approved budget of its own was in 2020-21, after which it was “fully merged” within the EDD’s budget.
It shared a ledger showing an approved budget of $150,000 for 2020-21 and actual spending of $119,533, including $33,000 on travel and $75,000 on educational services.
Ms Dill wrote she was satisfied with the EDD’s response, adding a reminder to public authorities that they were required to provide quarterly expenditure reports when asked by the public.
“When made routinely and in a timely manner, these information sources are meant to support the public’s awareness of the Government’s actual spending of public funds, which should encourage citizen engagement and avoid the need to process Pati requests for this type of information.”
• For the 2020-21 fintech spending ledger, the EDD’s 2023 fintech year-end report and all the ICO decisions about this request, see Related Media
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