BDA’s legal fees for Pati request involving Premier
A government agency hired lawyers to handle a single public access to information request that involved its communications with the Premier about a private investment firm — at a cost to taxpayers of more than $165,000.
The outlay on legal fees was disclosed by Major Marc Telemaque, the Cabinet Secretary.
It came more than two years after The Royal Gazette asked for records underpinning a claim by David Burt that the Government needed to introduce fees for Pati requests because of the “extraordinary amount” incurred by public authorities in dealing with them.
Mr Burt, who is also the Minister of Finance, declared in his 2023-24 Budget statement that a “government authority spent in excess of $300,000 to respond to a single Pati request” but gave no further details.
He insisted: “These are funds that could have been used to advance the wellbeing of Bermuda but were instead spent researching information.”
The Budget statement did not include the fact that the “single Pati request” concerned claims the Premier had made in Parliament about a Guernsey-based company called Game Theory — and that former Information Commissioner Gitanjali Gutierrez found disclosure of some records in response to the request was in the public interest.
It took another Pati request to the Cabinet Office, a two-year wait for a response from Major Telemaque and an inquiry by the Information Commissioner’s Office for a fuller picture to emerge of how the publicly funded Bermuda Business Development Agency hired counsel to handle the records request involving its communications with Mr Burt.
The Premier’s remarks in the 2023-24 Budget statement — including that the Pati regime could be “cumbersome and expensive” — were included to justify a plan to charge fees to members of the public for submitting requests for information.
Mr Burt claimed: “High levels of expenditure on requests are not uncommon, as many government departments have had to halt vital work or hire short-term consultants to assist in responding to Pati requests.”
The statement did not include any statistics on the actual total cost annually to the public purse of processing Pati requests and it has not been possible to obtain those figures.
A government spokeswoman said last week: “This would be difficult to collate based on the sheer volume of requests and varying nature of those requests.”
The ICO’s most recent annual report showed there were 177 Pati requests made in 2024, or fewer than four a week.
Only 43 public authorities received records requests last year, including 22 that received only a single request. There were 134 public authorities which received no requests at all.
Parliamentarians passed the Public Access to Information Amendment Act last year and it came into force in January.
The legislation allowed the Government to charge $60 per hour for any requests that exceed 16 hours to research and compile, and to reject requests requiring more than 100 hours to process.
Ms Gutierrez, who finished her ten-year tenure as Information Commissioner in February, wrote in the ICO’s 2024 annual report that the changes to the Pati Act “threaten to disempower parts of our community and reduce accountability”.
The Gazette made a Pati request to the Cabinet Office soon after Mr Burt delivered the 2023-24 Budget to find out more about the Pati request that he claimed cost $300,000 and for details about the short-term consultants hired to help with records requests.
Major Telemaque responded in June 2023 to say that records about the $300,000 request were “now being collated” and would soon be supplied.
He rejected the part of the request that sought records about the consultants because it was “too broad” and processing it would disrupt the work of the public authority.
The Gazette narrowed the request but no records were shared and no explanation was given.
A similar Pati request was submitted in June 2024, again unsuccessfully.
The Gazette asked the Information Commissioner to investigate and last November Ms Gutierrez ordered the Cabinet Secretary to issue a decision on the June 2024 request by January 3 this year.
Major Telemaque missed that deadline, eventually sending his decision to the newspaper on March 27.
He wrote that the Pati request referenced by the Premier in his February 2023 Budget statement was made to the BDA in May 2019 and was for records about GTL Atlantic Ltd, the name Game Theory incorporated under in Bermuda.
“The $300K spent in responding to this request appears to comprise $165,932.50 in legal fees, combined with almost 100 hours of staff time [at various levels in the organisation] devoted to the matter,” he wrote.
The government spokeswoman said Mr Burt did not give any details about the Pati request to the BDA in his Budget statement because the content of records requests and the management of them were “not matters for ministers and are not disclosed to them by law”.
The Bermuda Business Development Agency matter dates back to a February 2019 parliamentary speech by the Premier in which he blamed The Royal Gazette and the One Bermuda Alliance for a decision by a firm called Game Theory Ltd to scrap plans for an office on the island.
The company had posted a job advert for six “sports trading operators” in Bermuda, but David Burt said it opted not to open an office here after an article about its recruitment drive appeared in the Gazette’s Business section.
The Premier told MPs that Kevin Richards, who was then the BDA’s business development manager, had worked hard for six months to bring the Guernsey-based company, which he did not name, to Bermuda and the “disappointment felt in” his voice was “palpable” when he heard of its change of heart.
The newspaper submitted a Pati request in May 2019 to the BDA for all the records it held about the firm, including communications between Mr Richards and any public servant, including Mr Burt.
The agency disclosed 600 hard-copy documents in response to the request, although it redacted the names of public officials and was later told by the Information Commissioner that it needed to make further disclosures.
Gitanjali Gutierrez wrote that it was “in the public interest to understand why the Premier criticised The Royal Gazette during the parliamentary session on February 15, 2019” and that “disclosure of the information in the records about two elected officials … is in the public interest”.
In his parliamentary speech, Mr Burt said the company fell within the fintech industry.
The initial disclosure revealed that Game Theory told a BDA official it was happy to be categorised as a fintech firm “if it helps from a political point of view” although it did not view itself as a financial technology company.
The later disclosure showed that Wayne Caines, when he was the Minister of National Security and responsible for fintech, was involved in discussions with the company about setting up an office on the island.
The company described itself as a “private investment office for a family” in its correspondence with the BDA.
The Cabinet Secretary, in his March 27 letter, again refused to share details about the short-term consultants hired to handle Pati requests and the work they did.
“There are 12 ministries and over 700 government departments, and my view … is that this request is manifestly too broad and creates an administrative burden to fulfil …” he wrote.
The Cabinet Office, he added, was “aware of two ministries [health and finance] having engaged consultants in the relevant period to manage the volume of Pati requests”.
The Gazette asked the BDA for comment for this article.
David Burt, the Premier and Minister of Finance, said in his 2023-24 Budget statement: “The public access to information regime is a proud achievement of the PLP government and serves as a way to ensure that the public have access to the information that the Government keeps on them and are better able to understand the reasoning for government actions.
“Pati increases the Government’s transparency and accountability.
“Despite this, the regime can be cumbersome and expensive.
“As an example, a government authority spent in excess of $300,000 to respond to a single Pati request.
“These are funds that could have been used to advance the wellbeing of Bermuda, but were instead spent researching information.
“High levels of expenditure on requests are not uncommon, as many government departments have had to halt vital work or hire short-term consultants to assist in responding to Pati requests.
“Therefore, the Government will implement a nominal fee for Pati requests that are not from private individuals requesting information about the data that the Government holds about them.
“This nominal fee will not nearly cover the extraordinary amount that researching Pati requests costs the Government, but the Cabinet has deemed it necessary to implement a fee to ensure that at least some of the costs of requests are recouped.”
• To view the Cabinet Secretary’s letter and the Information Commissioner’s Office decision about the Cabinet Office’s failure to decide, see Related Media
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