Created: Feb 21, 2023 03:45 PM
Information Commissioner Gitanjali Gutierrez
Information Commissioner Gitanjali Gutierrez said today she rejected the Government’s plan, announced in last week’s Budget, to introduce fees for public access to information requests.
A statement from her office said neither she nor the public were consulted about the decision, adding: “The Information Commissioner rejects a fee that will create a barrier to public access to information and make Bermuda an outlier in the international community.”
Ms Gutierrez said the fee could jeopardise the anonymity of requesters and that any lessening of Pati rights should only happen after proper consultation with the public.
“The Government’s current policy approach suggests that the changes impacting Pati rights are at risk of being developed behind a veil of secrecy, contrary to good governance and robust citizen engagement,” she added.
David Burt, the Premier and finance minister, said in his Budget statement that the fee would be “nominal” and was being introduced because of the expense of fulfilling Pati requests. He said one request cost more than $300,000.
But Ms Gutierrez said the proposed nominal fee was “highly unlikely to generate meaningful revenue for the Government” while creating “a real risk that it will take away everyday Bermudians’ rights to seek public records that are held on their behalf by public authorities”.
She added that the amount of fee and estimated revenue were not shared but it appeared to be an attempt to reduce the number of Pati requests instead of “addressing existing needs for proper implementation of public authorities’ responsibilities under Pati“.
The ICO said there were 135 Pati requests to public authorities in 2021 and an estimated 150 last year and that once the fee amount was shared by the Government, the 2023-24 revenue could be calculated.
The statement said: “A new fee is very likely to reduce the number of requests made by individual Bermudians and residents.
“Because around 47 of 187 public authorities reported receiving Pati requests in 2022, a fee may result in an immediate, short-term benefit of a reduced workload for a quarter of our public authorities.
“Though the media’s Pati requests may generate widespread attention, everyday Bermudians and residents have been quietly making Pati requests about education policies, pension records, procurement documents, work permit concessions and more.
“During the first five years of the Pati Act, requesters seeking an independent Information Commissioner’s review were divided evenly between the media and the general public.
“If the new fee discourages everyday people from making Pati requests, public authorities may end up handling requests mostly from professionals, such as journalists and lawyers, who can bear the costs. Even this smaller number of requests may still require substantial work, however, and defeat the apparent purpose of imposing a fee.”
The statement continued: “The uncertain benefits from reducing the number of Pati requests may come at a cost.
“From 2015 to 2021, the ICO conducted an annual public awareness survey.
“Over these years, 76 to 80 per cent of the respondents believed that creating and enforcing the Pati Act is a very important public investment, and 79 to 88 per cent believed that the right of access to public records is important to them.
“Public authorities risk a decrease in public trust and reputation if barriers are created to exercise Pati rights that people value.”
The statement warned that unless fees were payable online, requesters could be required to pay at the Government Cashier’s Office in Hamilton between 9am to 4:30pm.
“Going to the Cashier’s Office raises another risk, because the Act requires a requester’s identity be kept confidential.
“The ICO’s 2021 survey found that, after seven years of Pati, only 31 per cent felt confident that, if they were to make a Pati request, the public authority would protect their confidentiality.
“People announcing their intention to make a Pati request at the Cashier’s Office will not improve public confidence.”
The statement said Bermuda, though it was one of the last jurisdictions in the world to introduce freedom of information, now had a “model law” which gave public authorities straightforward tools to administratively deny Pati requests that were too burdensome.
It said two ICO-commissioned reviews of the Pati Act in 2019 and 2020 by leading experts found it provided a “robust legislative framework but challenges arose with its implementation and existing barriers to making a Pati request”.
The reviews called for a more active role by leadership to implement the Pati Act; greater support and training for Pati officers; a modernised records management system; and formalised procedures within public authorities for handling requests.
“Addressing these issues may be more effective in reducing public authorities’ burdens when complying with the Pati Act,” said the statement.
Mr Burt has been asked for comment for this article.
* Read the full ICO press release by clicking on the PDF under Related Media.
