The Limits of the Public’s Right to Know

The Limits of the Public’s Right to Know

About Allan DoughtyAllan Doughty

Allan’s practice focuses on tort law including negligence and personal injury cases, contractual disputes, human rights and antidiscrimination law, constitutional law, public law and judicial review, medical law including clinical negligence, coroners’ inquests, privacy law, and professional disciplinary law.

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On 25 January 2022, Justice Shadé Subair-Williams issued a ruling, in the matter of The Attorney General v. Information Commissioner that prohibited Bermuda’s Information Commissioner from requiring the Government of Bermuda to submit documents for her review.  This is a fascinating decision in that it provides clear guidance on the limits of the jurisdiction of Bermuda’s Information Commissioner, who is tasked with the administration of the Public Access to Information Act (“PATI”). 

The Information Commissioner is an independent holder of public office, who serves as head of the Information Commissioner’s Office (“ICO”).  The main function of the ICO is to assist the public in exercising its right to access public information as afforded by PATI.   While PATI provides a general right of access to records that are held by public authorities, there are certain classes of information that are “exempt” from disclosure.

One of the Information Commissioner’s functions pursuant to PATI is to adjudicate claims of non-compliance when it is alleged that a public authority has unlawfully denied access to information that is in its possession.  In order to consider such a complaint, however, the Information Commissioner must review the documents in question.  It is only then that the Information Commissioner can decide whether the information should be disclosed or may be lawfully withheld on account of being a record that is “exempt” from disclosure per the workings of PATI.

The issue that arose in The Attorney General v. Information Commissioner, however, was whether the documents that Information Commissioner needed to look at fell under the jurisdiction of PATI at all. 

While PATI applies to the vast majority of documents held by public authorities, there are exceptions there are certain departments within Government that hold classes of documents that are expressly excluded from the jurisdiction of PATI.  One example the type of records that are excluded includes case files that are held by the Attorney General’s Chambers that it “created or obtained” in the course of its duties in representing the interests of the Government of Bermuda in a court action.

In case of The Attorney General v. The Information Commissioner, the requester sought access to the terms of a confidential settlement brokered between Bermuda’s former Premier, Dr. Ewart Brown and the Government of Bermuda.  When the Attorney General’s Chambers refused to disclose those documents, the requester sought review from the ICO.   The Information Commissioner, in turn, ordered the Government to forward the documents to her office so that she could decide whether they were statutorily “exempt” from production.

In response to the order of the Information Commissioner, the Government obtained leave to issue judicial review proceedings against that order.  When the matter was heard by the Supreme Court of Bermuda, the Government argued that as the settlement documents were “created or obtained” by the Attorney General’s Chambers in its representation of the Government against Dr. Brown’s claims, the Information Commissioner had no power to order that they be forwarded to her office.  

In her ruling, Justice Subair-Williams agreed with the Government and held that the Information Commissioner had exceeded her powers when she ordered that the documents be released to her possession.   In making that finding, Justice Subair-Williams noted that as the Information Commissioner held no power outside of what is afforded to her by PATI, and the legislation clearly stated that it did not apply to the class of documents in question; the Information Commissioner had no right to review the documents.

This was an interesting decision in that the Information Commissioner is able to wield significant power within her jurisdiction under PATI.  What this ruling demonstrates, however, is that there are limits to the Information Commissioner’s jurisdiction.