Q & A with Bermuda’s first Information Commissioner, Gitanjali S. Gutierrez

Q & A with Bermuda’s first Information Commissioner, Gitanjali S. Gutierrez

I had the pleasure of sitting down with Mrs. Gitanjali Gutierrez in my office at MJM last week for a one-on-one interview about her background, role as Bermuda’s first Information Commissioner, and the Public Access to Information (PATI) Act implementation. A fascinating woman, she spoke passionately about her new role and the way PATI is changing the way things are done in Bermuda. Here’s what she had to say…

Tell me a little bit about yourself and what attracted you to the groundbreaking role you have just taken on.

I am a US trained international human rights lawyer and I’ve done access to information litigation work for about ten years as a part of that. I have some legal training in the UK legal system as well. I have been involved in social justice movements that have involved implementing human rights standards or some other kind of social change broadly within governments or communities, so that aspect of this new change of the PATI Act is familiar to me.

What attracted me to the role? When I got married and moved to Bermuda, I really wanted to be able to do similar work. I really wanted to be able to contribute to positive change here; to be able to contribute to the community. I feel very lucky to have the kind of post that I have because it gives me a tremendous opportunity to do that. And it draws upon my work doing Freedom of Information Act work in the United States and to some extent in the UK and other countries. I’m thrilled to be able to bring those skills and that background home now and be able to have an impact here like I was having with my prior work.

What is Bermuda’s first Information Commissioner responsible for?

The PATI Act lays out the statutory mandate for the Information Commissioner and, really, it’s a three-part role.

The first thing that the Information Commissioner is tasked with is promoting public awareness under the PATI Act by helping the public understand what their rights are. And for me it’s also about helping the public understand their responsibilities and how to use the PATI Act. So there is a public education aspect of it. Second, looking at Public Authorities, there is also a role for the Information Commissioner in providing guidance. This is not specific advice on particular legal requests but more general guidance about their responsibilities and obligations under the PATI Act. Attached to that is the Information Commissioner’s responsibility for overseeing compliance with the PATI Act as well. In addition to giving guidance to public authorities, the Information Commissioner is also responsible for encouraging and enforcing, when necessary, compliance with all of the obligations under the Act. Then the third role of the Information Commissioner is to hear and resolve requestor appeals from the decisions of public authorities under the PATI Act. So those might be decisions on a request for records or it might be someone from the public who thinks that a public authority hasn’t fulfilled their responsibilities under the PATI Act (hasn’t published something that they were supposed to proactively publish or something).

There is a little bit of tension between those three roles. On the one hand I’m providing education and guidance to the parties but if there is a dispute between those parties then eventually it comes to an external body – me – for an independent hearing of their request/complaint.

Those are the general responsibilities of the Information Commissioner under the Act, however, I think there are also some additional responsibilities I feel as the first Information Commissioner, as the person who is in this role for the first year or two after the PATI Act has been implemented. I feel a responsibility to take a very impartial, independent and constructive approach to my work. I see a lot of people both within the public and within public authoritiesmaking a great deal of effort to take their responsibilities seriously, to effect their obligations correctly. It’s the first year and of course there are going to be missteps, there are going to be mistakes and that’s normal and natural. It’s not just a new law but it’s a completely new way of connecting to the government and government authority business. It’s a completely new development in the relationship between people here and the public authorities here and government. As that is being built, I want to be very constructive and supportive of people engaging with the PATI Act so that they are encouraged and understand what’s going on, and don’t perceive the PATI Act as something that’s confusing or disruptive or that undermines the public’s relationship with public authorities or with the government.

Around the world, freedom of information laws have sometimes been referred to as “open records,” or “sunshine laws” and are also considered a key tool in anti-corruption measures. Can you comment on this? How does PATI fit in with the Good Governance Act 2008?

Yes, these terms are pretty international – there is a “Sunshine Day” and “Sunshine Week” that happens globally. These kinds of open records and sunshine laws, or the concept of public access to information laws being called “sunshine laws,” the idea behind it is that it shines light on areas of hidden law. As a person outside of government or public authorities, you might sometimes see decisions being announced or issued and it’s not clear how or why that decision has been made. That lack of communication – that lack of understanding and information – can then sometimes lead to suspicions of corruption, whether valid or not, perceptions of corruption, and even, corruption is a very strong word, even if we back up from anti-corruption efforts and we talk about good governance, the lack of information I think can make people feel very distrusting and suspicious.

It also deprives public officials of the benefit of the expertise, wisdom, values and opinions of the members of the public. So if you have a public officer who is, say, making an environmental decision and they have access to an Environmental Impact Statement, there are many, many people within Bermuda who also have expertise in a variety of areas dealing with environmental sciences so if those individuals also have the same Environmental Impact Statement, they can give a more informed opinion and perhaps sit down and have a more informed meeting with that public officer. That benefits the government.

I think the impact of open records laws like PATI range all the way from addressing very serious issues around anti-corruption questions(which I think are important for every country, not just Bermuda)to helping with the broader understanding of good governance; of having an informed public who has the same technical, factual or statistical information that a public officer has so that they can engage in a higher level conversation (than what happens when the person from the public is just sitting across the table and sort of guessing).

In terms of the more serious issues around transparency as an anti-corruption tool or transparency as an accountability tool, I think that as a decision maker right now if all that you have to do is announce the conclusion without giving any rational or legitimate reasons for your conclusion, it becomes easier to take shortcuts; to move away from a way of thinking about your office as a public officer, making decisions about public funds for the public good. And when you have tools like the PATI Act, it makes your office transparent. It means you’re like a judge actually – no judge would issue an opinion or get away with issuing an opinion that just has the conclusion paragraph, right? Without giving the reasons, the precedents, the rationale.Particularly with policy decisions, when there isn’t really a right or wrong answer but you’re making a judgement call, judges give those reasons for their decisions. If they are departing from the way practices have been, they have to give a reason for doing that. So to some lesser extent now, public officers are in that position in general. There are certainly some areas that are still confidential. But in general now, when public authorities make a decision — whether it’s why a contract was awarded to a particular entity, what the decision making process is, or why a policy decision went one way and not the other — if they don’t give the reasons for that now, then there is a right under the PATI Act that can be used to potentially seek some of those conclusions that would support the decisions. The Act won’t necessarily reveal the back and forth within the public authority of its decision making process, but the basis for the conclusions are accessible under the PATI Act.

And one other aspect of promoting good governance involves public funds, which I think for the current economic climate in Bermuda is an enormous issue.For all public authorities now, their decisions around public funds need to be transparent, and more transparent than they’ve been in the past. I think the vast majority of public authorities have actually been disclosing quite a bit of information of how they use public funds, but this makes it uniform. It removes any discretion from the provision of those funds or not. For instance, prior to PATI, if I know and like your journalism, or if I know and like you from our prior business dealings or our personal relationship, I might give you the information…but if I don’t know you then I won’t give you the information. So that sort of discretion is removed and now people have a right to that basic information. A lot of these public open access laws are focused around broad issues of good governance but also around accountability around public spending -trying to make sure that there is not frivolous spending and that there are ways of measuring efficiencies, those kinds of things. And that’s now going to be available under the PATI Act.

Can people use PATI to access information from any business or is it limited to just information held by the government?

I want to be really clear about this: the PATI Act is limited to records held by government. It does not touch records that are between private businesses at all. The premise of open access laws, including the PATI Act, is that public records are a national resource. If I’m working in a public authority serving the public, my records in my office are not my personal, private records that benefit me or benefit my private business. I’m in a public authority and the records I hold are a national resource. That’s not true for private businesses. They’re clearly engaged in private activity for private benefit and so their records aren’t subject to the PATI Act. Businesses who have contracts with the government should understand now that any contract whose value is $50,000 or more, the basic details of that contract are now required to be disclosed under the PATI Act. So for those businesses with those contracts they might want to discuss with their department or public authority what that will mean.

What does the definition of “public authority” include? Are there any entities included, from which we can request information, that might surprise us?

Different countries deal with this in different ways. Some countries specifically list all of the public authorities by name and have that updated on an ongoing basis. Our PATI Act has a Schedule attached to it – Schedule 1 – that lists who falls within the meaning of “public authority” for the PATI Act. There are some offices that are named specifically, my office is, the office of the Information Commissioner, the Cabinet Office, The Office of the Governor. So, some of the independent offices are specifically named. Further, it includes every department of the Government and the Corporation of Hamilton, every Parish Council, the Corporation of the City of Saint Georges… Then there are two categories that aren’t specifically listed:

1) Every entity that is established by statutory provision and does governmental or quasi governmental functions – so that’s most of the statutory boards that are established in Bermuda.

2) Entities that are owned or controlled by the government or receive substantial funds from the government.

One of the things that has been interesting as the Information Statements have been coming in is the many, many statutory boards that are helping Bermuda – there are a lot of them. They are primarily run by individuals who put in a lot of time and effort on a voluntary basis to help Bermuda, to help us do the things that we do. Everything from different sporting entities, public golf courses, advisory boards that provide community input to the various departments….so there are quite a few and they’re all listed on the Information Commissioner website. There’s a list of public authorities and there were some that surprised me. I think probably everyone will look at that list and see one or two and think “oh of course, I forgot, that’s actually a public board.” Also, a link to the Information Statements for all the public authorities is available on the ICO website.

How does a member of the public file a request for information?

It’s actually a very simple process and it should be a very simple process. Certainly every public authority is working out their way of receiving requests, but it should be simple. The right to file a PATI request specifically is limited to someone who is Bermudian or is resident of Bermuda. So you have to have your proof of that. For that reason, some of the authorities will allow you to submit a request through the mail but you’re going to have to go to the public authority and show your identification to establish your eligibility. So that is probably the most difficult part right now for filing a PATI Act request is having to actually go to the authority and do that verification process.

I would suggest first looking at the Information Statement for each public authority. It is a basic statement that each one has provided that describes the authority’s organizational structure, their functions and duties, if they have decision making documents, etc. It has a lot of information. If you’re trying to figure out who is responsible for some particular activity, you can look at these different Information Statements and figure out which public authority you should go to and maybe what you should ask for.

But there are really only a few requirements. You need to be Bermudian or Bermuda resident, it needs to be in writing, and you need to request records as best as you can. You need to describe the records enough that the person who is responsible (called the Information Officer) within the public authority knows what you’re looking for. And that’s really it. The information officer is tasked to assist. So if your description isn’t accurate or isn’t clear enough then the Information Officer has an obligation to call you to talk about it, to see if, in having a conversation, you can narrow down the request to a specific record. Really, that’s it. The government has a PATI website that has a form for requests for records, it’s very simple and you can use that form, or you can just put your request in writing however you want.

Does the person making the request have to tell you their reason for making it?

No, and I think this is particularly important here in Bermuda because we’re such a small community. If you are going to make a request, you do not need to say why. Also, when you’re going in to make a request, the Information Officer is responsible for maintaining your confidentiality. That’s a requirement of the Act. Anyone else can only learn your name if it is required for your request to be processed. If it’s possible for an Information Officer to get your records without disclosing your name, then that’s what they’re required to do.

The name of the requestor is kept confidential because in some of the larger public authorities, if someone is making a request and certain people in the public authority found out, it could create tension or backlash. So that confidentiality is there.

There is some guidance on the Information Commissioner’s Office website about how to make a request. One of the things discussed on there is that you are not required to give a reason for your request, but it might be beneficial to do so. There are legitimate reasons within the PATI Act that a public authority can refer to when refusing to disclose a record and those reasons are called exemptions. The way the process happens is that an Information Officer looks at the exemption and decides whether it applies. If it applies there is a second step, the Information Officer needs to consider something called the “public interest test.” So, if I look at your request and realize that one of the exemptions applies that is subject to the public interest test, then I weigh whether disclosing the record would be more beneficial to the public (despite the exemption), or whether it would be more beneficial to the public to withhold the record. There are some guidelines and regulations about what constitutes valid considerations for the public interest test. They aren’t broad, unlimited considerations. There is a specific definition and scope of what’s considered in the public interest.

Going back to somebody who is making a request, for some requests it will be obvious that they relate to the benefit of the public. They might deal with something around public spending or malfeasance, or some very obvious public accountability issue. So, an Information Officer will see that clearly. For other requests that might not be clear. To the extent that you give some explanation of what the public benefit might be, if it comes to the point where an Information Officer is weighing the public interest, they will have some input from you about what the public interest is related to your request. You also have two opportunities to raise that issue: someone may want to file their request without giving that information and if the request is denied there is a chance to appeal to the head of the authority. At that point, if you have had an exemption invoked against your request and the public interest has been weighed and you think that it was wrong, you might want to raise the public interest benefit at the appeal stage.

Can an information request be denied?

Yes, requests for records can be denied. The PATI Act, like many open access laws in many other jurisdictions, strikes a balance between the public’s right to access records and the government/public authorities’ legitimate need to keep certain types of information confidential so that they can do their work. The easiest example to give is if you think about someone making a request to the police service for the name of a confidential informant. Here’s where you’re balancing the public’s right to the record against the legitimate need for a public authority to keep the information confidential to be effective. Perhaps the request is made by someone who is suspicious about a relative being a confidential informant so they file a request for records wanting to know that information. There are a lot of reasons why that might be exempt. But one reason why it might be held confidential is because if the police service went around disclosing the names of confidential informants then that law enforcement program wouldn’t work anymore and that’s a program that actually benefits the public. Having effective law enforcement that operates within the bounds of their legal authorizations is an effective program to help benefit the public. There’s no reasons why something like that should be disclosed under a public access law.

The purpose of public access laws are to hold government accountable and to create more effective governance, more effective public authorities. When you look at the exemptions that are contained in the act, each of them goes back to that particular principle. The default rule under the PATI Act is that records are disclosed. If you are asking for a record, by default the public authority should give it to you. If a public authority is going to withhold a record, they must point to one of the exemptions in the PATI Act, and these are the only legitimate reasons allowed for the public authority to not disclose a record. So they have to give you the reasons why they’re not disclosing the record and those reasons need to be one of the exemptions in the Act. If there is not an exemption that covers that record, then that record must be disclosed.

Are there any records or information held by government that will not be made available?

There are, and some of those records are outlined by name in the list of exemptions in Part 4 of the PATI Act. Records related to International Tax Agreements, for example, are specifically named as something that would not be disclosed because that would undermine the effectiveness of Government’s use of those Agreements. There are other classes of records that are exempt under the PATI Act. Personal information about someone, for example.is exempt under the Act. A public authority’s deliberative information may be exempt. If a public authority is making a decision, their internal discussion going back and forth where people are disagreeing and arguing and getting information – that is not usually accessible. Ultimately the public authority comes to resolution and has final reasons. That ultimate resolution is something that is accessible under the PATI Act, but the internal back and forth is not. That’s the place you want public authorities to be able to have free and frank discussion. You don’t want to inhibit that process because that’s going to lead to poorer decision making. What we want with the PATI Act, what it’s purpose is, is to facilitate better decision making. That’s how the records are handled in the exemptions. Sometimes it’s classes of information that are exempted, in some cases it’s specific records that are exempt.

There are also a set of records that will not be made available from within some particular public authorities. In Part 1, section 4 of the PATI Act there is a list of entities who have significant portions of records not subject to the PATI Act. The PATI Act is applicable to every public authority, no authority gets a free pass. But there are certain offices like the Auditor General, the Office of the Ombudsman, the Attorney Generals Chambers, the Director of Public Prosecutions, and a handful of others that for these specific public authorities, their operational records — the records related to carrying out their functions — are not subject to the PATI Act. You can imagine why for the Attorney General’s Chambers or the Director of Public Prosecutions. You wouldn’t want those records subject to transparency. That would not help them do their work. But their administrative records are subject to the PATI Act. These are the records related to the spending of public funds – the kinds of things that the public could legitimately hold those offices accountable for. So that’s a fairly large section of records that have been carved out. It’s not actually an exemption; the PATI Act is not applicable to those records.

What is the expected wait time for a standard request?

If someone makes a PATI Act request there is an outer limit of 6 weeks that a response needs to be given by the Information Officer. It could only take a week or two, it can take a few days, but the longest period of time that an Information Officer has is 6 weeks. There are some exceptional circumstances where an Information Officer could seek an extension for another 6 weeks and that’s related to the burden that it places on the day-to-day work of the public authority (how much of a burden it is to process the request). A 6 weeks possible extension makes a total of 12 weeks the longest period of time for you to get a response from the public authority. That response will say: We have found the records or we have not found the records, and if the records are found, we have decided some of it is exempt, and some of it isn’t. So basically, the Information Officer will tell you what the result is and will tell you what fees, if any, need to be paid in order to get copies of the records.

At that point, the person doesn’t get access to the records yet. They can go ahead and decide whether to pay the fee or whether or not to appeal the decision if they disagree with it. They would appeal to the head of the authority and it’s an internal review. However, if the requestor agrees with it, they could pay the fee but they still have to wait the 6 weeks time period for an appeal to expire and then after those 6 weeks they can get access to the record if they have paid the required fees. So it could potentially be 12 weeks maximum before someone actually gets the records in their hands.

Now, this is for records that are sought through a PATI Act request. The way the process works, is that if I walk into an office and I tell the Information Officer I am looking for Records A, B and C, the Information Officer can look and say “Oh, Records A and B are ones that we routinely make available, you don’t need to file a PATI Act request for that.” These are minutes of meetings or expenditure reports or something that they make available on a routine basis. “Let me get you copies of these. It will be $2 for the photocopying fee,” or whatever the public authority’s standard fee is for that. They will give you those on the spot or ask you to come back the next day after they have them copied. Record C that you want may trigger some exemptions, however. It’s a little bit more contentious. The Information Officer could say, “You’re going to need to file a PATI Act request to give us some more time for that one.”When you’re going in and asking for records, it may be that you are asking for records that are routinely available, so you don’t have to go through the PATI request process, and other records are going to have to be obtained using PATI Act requests and they will then follow that 6 week time frame, with the possibility of a 6 week extension.

Are there fees associated with requesting and/or obtaining information or is it free? If so, some people might argue that there shouldn’t be fees associated with accessing information or that the fees might be intended to bar access to information. How would you respond to that comment?

There aren’t any fees for filing a PATI Act request. There is no fee. That is a pretty universal approach to these kinds of laws – that there shouldn’t be barriers to accessing information, economic barriers that is. So there’s no fee to filing a request. However, there are potential fees depending on how you want access to the record. There could be fees for getting photocopies of records and those fees are on par with fees required from getting records from other statutory schemes. If you want to go down to get a copy of an immigration record or if you want to want to get a copy of a divorce decree, any of those kinds of legal public records, there are nominal fees attached to getting photocopies of those or getting them in some other format.

For most of the records held by public authorities, though, there is a route to being able to see a record if you can’t afford a photocopy of it. You could ask “Well, could I come in and sit in a room and look over the record and take some notes?” If the type of record and the nature of the public authority facilitates that and allows for that, then this is a way of getting access to a record where you might not have any fees involved. That would help facilitate access without having an economic barrier attached to it.

There should not be a financial barrier to accessing records and if we find over the first year or two of the PATI Act in Bermuda that there are barriers, financial barriers, of people getting access to information, then that’s something we would absolutely address because these are records being held in trust for the public. I am committed to developing a way in our office – in the Information Commissioner’s Office – that people would be able to have access to a computer if they don’t have access to a computer at home. There are computers at the National Library. There are ways for the public to be able to try and have access to information that hopefully wouldn’t be precluded by financial concerns.

I also think that we are facing a difficult economy right now and the public authorities are facing some very difficult economic challenges. I think people need to understand that there are costs associated with implementing the PATI Act. The entire country is to be commended for embracing this right now, particularly the Information Officers who are taking on this additional task, an addition role, without additional compensation. There are a number of people who are working very, very hard to put this into place. I think with the fees, they’re nominal and on par with the other fees required for other documents. They will perhaps offset a little of the implementation costs. I think all of us have to be aware of striking that balance. At the same time, the fees for getting access to a record shouldn’t preclude someone from getting access to a record. If that becomes an ongoing issue, then I think we’ll need to look at a way to either find a different mechanism for someone to get access to the records or to make sure that there is always the possibility of being able to look at a hard copy if it’s too expensive to make a photocopy. We would have to find some kind of solution.

I read that in certain countries, independent bodies that process information requests can succumb to political pressure or are made ineffective by lack of funds. However, in Bermuda it was reported that “the Information Commissioner is an independent office, not subject to bias or influence by any political party or government.” Can you speak to this?

I do think it’s absolutely critical that the Information Commissioner’s Office be independent and also actually be free from bias, as well as being perceived as being free from bias. This office is charged with safeguarding a process. The role of the Information Commissioner is not to take sides, to be an advocate for any particular issue or any particular political party, but really to promote, oversee and safeguard a process for people informing themselves. One of the most important changes in the law with the PATI Act is that we’ve moved from people having access to information as a matter of discretion to people having access to information as a matter of right. So if the office of the Information Commissioner is perceived as exercising some sense of discretion based on bias or personal preference or political influence, then that completely undermines one of the most important aspects of the Act. I am personally very committed to the principle of independence and fairness and impartiality. And that’s going to be a significant criterion in hiring staff for the Office as well. I also think that we’ve shown a tremendous commitment to the Act by providing adequate funding. I know that Information Commissioners in other countries do struggle with that and struggle with a lack of resources to properly investigate appeals or to properly investigate the effectiveness of the Act or provide support and guidance to public authorities on implementing the Act. I’m very proud to say that we have made a commitment to providing adequate resources for this Office to do its work. This is especially in this first year because it’s so critical to make sure that there is sufficient guidance given to public authorities to fulfil their responsibilities under the Act and that there is sufficient education for the public on how to affect their rights under the Act. I feel very proud we have made a decision as a country to embrace this principle and to make sure that we’re going to have the resources and tools to do that.

One more important thing helps protect the Information Commissioner’s independence and effectiveness.The PATI Act gives the Information Commissioner very strong compliance and enforcement powers. This has been an issue in the past with other good governance laws when the law failed to give an oversight body the statutory power to compel compliance with the law. In looking internationally at other public access to information laws, our PATI Act gives the Information Commissioner some of the strongest enforcement authority available. I think it reflects the country’s strong commitment to the principles of openness and transparency underlying the Act. And it will protect the independent work and judgment of the ICO.

Do you think the Act will have a marked impact on the way agencies make decisions and the way they record information going forward?

I do. And I think it already has, frankly. Even before April 1st, public authorities were aware that the Act was going to be implemented. They started to think about what that meant for their decision making or how they record their decision making. They looked at what records they have in their offices and how those records are organized. All of these kinds of things started coming up before April 1st and now that April 1st has come, I think everyone is very aware of it. Probably the same thing is happening here that’s happened in other countries when open access laws get implemented: there is an initial spike in anxiety amongst everyone in public authorities.They want to stop writing anything down or stop sending any emails. Every communication becomes verbal. And I think that is very, very typical. There is an initial tremendous anxiety and then most public authorities start becoming comfortable and start understanding a new aspect of their role as public authorities. They begin to see the difference between what a public record is (that needs to be preserved) and a quick email that is about meeting somebody for lunch (that doesn’t need to be preserved). We see this with things going on in other countries like in the United States and UK where people who are in public offices are starting to learn the difference between public records and a post-it note that they don’t need to save.

So here in Bermuda, I do think that public authorities have taken their responsibilities very seriously under the Act. I think you can see that in Information Statements that were produced: people are going through very thoughtfully and looking at their records and trying to self assess their own gaps in how they manage their records and trying to understand what new systems they need to have in place for dealing with their records. I think the PATI Act has affected the decision making process. People understand now that if I work in a public authority and I make a decision, I probably need to either have some reasons attached to that decision to explain it or I need to make sure to preserve the records that will explain the basis of that decision in case someone wants to see them. Perhaps for some individuals, that’s a new way of conducting their business.

I just want to addthat I think another way the PATI Act is going to affect decision making is that it will make it even better. There is this internal process that is happening for public authorities in how they explain their decisions and how they keep their records but another part of the decision making process is how they engage the public. I think we’ll start seeing that impact in 6 months to a year from now, particularly when you think about the advocacy organizations in Bermuda. These organizations that engage with public authorities a lot, as they start learning how to get information from the PATI Act and inform themselves better, you’re going to start seeing their impact on the decision making process being more effective and better. I think that ultimately the public authorities’ decision making process will be impacted by that. That’s a more long-term affect and goal of the PATI Act.

One can imagine that public authorities will now be encouraged to continuously make certain categories of information available to the public so that access is granted without the need to make a request under the Act. Do you see this happening?

Absolutely and it’s actually required under the PATI Act. Section 6 of the PATI Act identifies some information that is required to be routinely made available to the public and that includes quarterly expenditures, details of any government contract that is over $50,000, salary scales for all public officers, etc. The Information Commissioner is also tasked with the mandate to promote information being more routinely available and the public authorities know that is something to strive for. For example, if a public authority has been receiving a PATI request repeatedly for the same record, and they’ve been making it available, that might be something that they want to move from their ‘PATI Act request column’ into their ‘routinely available column,’ so they don’t have to keep dealing with PATI requests.It becomes something that they start making routinely available for the public because the public has shown an interest in it. There mayactually be records that a public authority, with no intent of withholding things, just didn’t think that the public would be interested in but over the years we may discover that the public is interested in that record. So the public authority will start making it routinely available. Part of the mandate of the PATI Act is that public authorities start to look at that question and move those records into the routinely available column

Is there a penalty if a public officer acts with the intention of preventing disclosure of information by altering, erasing, destroying or concealing records?

Yes, there is a criminal penalty but I think there’s been a bit of confusion around this and around the scope of it. We are not talking about a situation where perhaps an Information Officer doesn’t disclose a record because he or she legitimately thinks an exemption applies and then there’s an appeal to the head of the authority who overrules that decision or alters that decision and releases a record. That good faith decision by an Information Officer is not subject to any kind of penalty whatsoever. The criminal penalties are really built in for an individual who was acting in bad faith. We’re conjuring up the image of someone at a public authority who, in the dark corner of their office afterhours, is diligently shredding documents with bad intent, with bad faith intent. That’s the person who criminal penalties are targeting. I think that is so important to clarify in this first year as everyone is trying to figure out the scope of the exemptions, how to disclose records, and perhaps discovering records that were not properly stored and have been destroyed, not from bad faith, but by Hurricane Fabian. Those records and that situation are not what criminal penalties are for. The penalties are truly for people who we can point to some kind of evidence indicating that they were destroying records with intent or they opened the office afterhours so that someone could sneak in and destroy records with bad intent. That the kind of situation that we’re talking about.

I’m sure the next couple of years will be an exciting time for those promoting and using the right of access to information. Is there anything the public can do assist in making the PATI Act’s implementation successful?

I think the public has a huge role in making the PATI Act successful. The PATI Act is now implemented, the public authorities have their processes in place for receiving requests, but the only people who can make the requests are the public. So I think the most important part of it is that the public needs to use the PATI Act.

I see a lot of discussion on social media or in the paper where people are posting comments saying “well, what happened to this money or how much was spent?” or asking “why was that decision made?” or even “who made that decision?” Now there is a responsibility under the PATI Act to go get those answers. If you’re someone who is engaged with public authorities, engaged with your community, and you were asking these questions and posting them, you now have a right to exercise, a way to get those answers. I would ask the public to take up their responsibility, to go one step further, and not just post a question on Facebook but take another step to actually file a PATI Act request to get that information and engage in an informed way.

So the first thing is to use the PATI Act.

I think the second thing for the public is to use the PATI Act responsibly. There was an article in the paper in mid-April in the New York Times* about the freedom of information law, the FOI law, in the UK and the significant resource burden it’s placed on public authorities, especially local public authorities who are having to handle requests that might be along the nature of what is the local Council’s plan to deal with an alien invasion. I would ask the public to the best that you can, file responsible requests. Legitimate requests. Don’t try and burden the system with requests for the plan for an alien invasion. We are a small community and we have somewhat limited resources and we are facing economic challenges right now so absolutely file a request, but don’t use frivolous requests to create a financial drain that’s going to hurt the country. That’s what I would – that’s a plea that I would put out there to the public in Bermuda.

Then I guess the other way that the public can really help the PATI Act to be implemented effectively is to approach the Information Officers with the aim of establishing a constructive relationship to begin with. These are individuals who have stepped forward to take on the frontline responsibility for implementing the PATI Act. They are taking on, in some cases, a significant amount of work and have shown a real dedication and commitment to the process. And the first requestors will also be the people who are showing some willingness to take a risk, to put in an effort, to be responsible, to take the time to draft those first PATI Act requests. So you have two people coming face to face who are committed to the implementation of the PATI Act, committed to its effectiveness and success. I would actually say to both parties to try and work together to try to revise a request if it needs to be revised so that it can be processed. If you have questions, ask your Information Officer your questions and really engage them in a constructive way to allow that request to move forward through the process.

-End of interview –

*The article Commissioner Gutierrez was referencing was: “From A to Z (Asteroids to Zombies), the British Just Want the Facts” By Bryony Clarke, published in the New York Times on April 11, 2015.

For more details about the Public Access to Information Act and Regulations, as well as related links, please see this post.