The Court of Appeal of Bermuda issues its first ruling arising from the Public Access to Information Act, 2010
About Allan 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.
Allan Doughty’s full profile on mjm.bm.
On 24 March 2023, the Court of Appeal issued its first ruling regarding the Public Access to Information Act, 2010 (“PATI”) and the function of the Information Commissioner, who is charged with administering that legislation.
The situation, giving rise to the appeal, arose from a request made by a journalist to the Attorney General’s Chambers (“AGC”) pursuant to PATI. Specifically, the journalist asked for access to records, held by the AGC, detailing a settlement reached between the Government of Bermuda and a private medical clinic that is owned by Bermuda’s former premier, Dr. Ewart Brown.
After receiving that request, the AGC refused to release those documents, to the journalist. In providing reasons for the refusal, the AGC claimed that Section 4 of PATI holds that its jurisdiction does not apply records “obtained or created” by the AGC in the course of carrying out its functions.
The journalist then requested that the Information Commissioner, per her statutory functions, conduct an independent review of the AGC’s decision to refuse to disclose the documents. The Information Commissioner, in exercising her powers of review then requested to see the documents that the AGC claimed fell outside the jurisdiction of PATI. The AGC refused that request claiming that the Information Commissioner had no right to review those documents as PATI, and by extension the authority of the Information Commissioner, does not apply to those records. The Information Commissioner then issued a summons to compel the AGC to disclose the documents so that she could conduct her review. The AGC then obtained leave to issue judicial review of the Information Commissioner’s decision to issue the summonses.
At first instance, Justice Shade Subair Williams (“Subair Williams J.”), agreed with the AGC, finding that on a plain reading of Section 4 of PATI, the records in question fell outside the jurisdiction of that legislation. For that reason, Subair Williams J. held that the summonses, issued by the Information Commissioner, were quashed for lack of statutory authority.
The Information Commissioner appealed Subair Williams J.’s ruling to the Court of Appeal. On 24 March 2023, the President of the Court of Appeal, Sir Christopher Clarke (“Clarke P.”), writing for the unanimous court, allowed the appeal.
In his ruling Clarke P. agreed that the plain meaning of Section 4 of PATI stated that the documents in question, on their face, fell outside the jurisdiction of PATI. Despite that finding, however, Clarke P. also held that the stated purpose of PATI would be defeated by Subair Williams J.’s interpretation of Section 4, if her decision were allowed to stand. Clarke P. went on to observe that the primary objectives of PATI include a provision of access to the public to documents, held by public authorities and to eliminate unnecessary secrecy. To enforce the purposes of PATI, it is clear that the Legislature intended that a “tailor made”, independent tribunal, be established that would have the power to review a public authority’s claim that records held in its possession should be lawfully withheld from disclosure. For that reason, to hold that the Information Commissioner has no power to review a record, which a public authority claims falls outside the jurisdiction of PATI, would lead to the “absurd” result of the Information Commissioner being prevented from conducting an effective review.
It was for the above reasons that Clarke P. held that PATI shall henceforth be read as affording the Information Commissioner the power to review a document, even when a public authority claims that it falls outside the jurisdiction of PATI, to determine whether that record may be lawfully withheld.