Court of Appeal affirms Information Commissioner’s power to review records

On 24 March 2023, the Court of Appeal handed down its decision on Information
Commissioner v Attorney General [2023] CA (Bda) 6 Civ, affirming the Information Commissioner’s power to examine records which a public authority claimed to fall outside the scope of the Public Access to Information (PATI) Act 2010.


The Court of Appeal has set aside the Supreme Court’s decision in Attorney General v Information Commissioner [2022] SC (Bda) 6 Civ (25 January 2022), which quashed two summonses issued by the Information Commissioner on 26 November 2020.

The two summonses were issued as part of an independent review by the Information Commissioner, of a decision by the Ministry of Health Headquarters on a PATI request for records on payments made to the Brown-Darrell Clinic and Bermuda Healthcare Services under a settlement agreement arising
from a dispute over the impact of diagnostic imaging fees reduction.


The summonses required the Solicitor General and the Acting Permanent Secretary of the Ministry of Health to submit a number of outstanding records responsive to the PATI request, to allow the Information Commissioner to
continue conducting her independent review.


The Attorney General applied for a judicial review of the Information Commissioner’s summonses before the Supreme Court, because she believed that the PATI Act did not apply to the outstanding records and, consequently, the Information Commissioner
did not have the power to examine them.

The President of the Court of Appeal, Sir Christopher Clarke has emphasised in his reasoning that the purposes of the PATI Act (such as to increase transparency, eliminate unnecessary secrecy and increase public authorities’ accountability) would be defeated if public authorities could prevent the production of records or any review of their decision, simply by claiming that the PATI Act did not apply to the
relevant records and without the Information Commissioner being able to examine the records.

The President took into account the existing, “sophisticated review system” under the PATI Act, which includes the requirements for the Information Commissioner to exercise her functions independently and for her reviews to be conducted in private as well as her wide-reaching powers to examine records.
“In clear and firm language, the Court of Appeal recognised and confirmed in their decision that the Information Commissioner’s independent review is crucial to safeguarding the public’s right under the PATI Act”, stated Information Commissioner Gitanjali Gutierrez. “The Information Commissioner has the authority to examine public records to ensure her review is meaningful, complete and effective.

Anything less would render her review—and the public’s PATI rights – illusory. As Information Commissioner, I remain dedicated to fulfilling the mandate of the PATI Act. Along with the exceptional
officers in the Information Commissioner’s Office, we will continue to strive to protect the purposes of
the PATI Act and uphold the PATI rights of every Bermudian and resident. We welcome this decision by the Court of Appeal.”

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