Looking Over The Draft PATI Legislation

Okay, so I have had some time to start looking over the draft PATI legislation which is available on the Government website here. I haven’t read over the companion document yet, but will do so after this, as well as review similar legislation in other countries (namely the UK, Scotland, Cayman and Jamaica) to see if there is anything in those documents that might also be included here.

The first seven pages seem fine to me, but I am a bit confused by Part 3, Section 13 (Application of the Rights of Access). This section reads:

13 – Application of Part 3

(1) Subject to subsections (2) and (3), this Part does not apply to records held by a public authority that were created before the coming into operation of this section.

(2) A requester has the right to be given access to personal information relating to the requester that is contained in a record, regardless of when the record was created.

(3) A public authority has a discretion to give access to records, other than exempt records, held by the authority that were created before the coming into operation of this section.

In particular I am confused by subsections (1) and (2) which seem contradictory to me; as a layman with no formal legal training I am left scratching my head trying to figure out what this means. Subsection (1) would seem to imply that any information created prior to this legislation is exempt from the legislation; however subsection (2) seems to imply that the requester has the right to access information created prior to this legislation. I believe this means that all information created after this legislation must be available to requesters, however information created prior to it may be made available but doesn’t have to be. At least that is how I am interpreting subsections (2) and (3). It doesn’t specify on what basis the holder of the information decides whether or not to allow access to information created prior to the legislation. Section 15 – Decision on Request, does not give any further information to me in clearing up the process used by the authority in deciding whether or not to allow access. It does state (subsection (2)a) that the reasoning behind the decision will be made to the requester, however I would like it to be more explicit in describing the basis on which these decisions will be made. While I acknowledge that Section 17 – Refusal of Request on Administrative Grounds – describes the basis on which these decisions will be made, subsection (1)e (the request is, in the opinion of the head of the authority, frivolous or vexatious) seems to be a catch-all excuse by which the authority can deny access. Perhaps I am being a bit to nitpicky here, and the act does provide for the right to appeal such a decision, with our local experience of ‘plantation questions’ I think my concern is understandable. Perhaps there is a legal definition of ‘vexatious’ but this is not provided in the Part One, Section Three – Interpretation. It’s not a big issue, but I do think it would help if this was defined.

This brings me to Part Four – Exempt Records.

I have some concerns about Section 28 – Cabinet Documents, in particular subsections (1)a and (1)b. These read:

(a) a record that has been submitted to the Cabinet for its consideration or is proposed by a Minister of Government to be so submitted, being a record that was brought into existence for the purpose of submission for consideration by the Cabinet;

(b) an official record of any deliberation or decision of the Cabinet

I don’t have any concerns about subsections (1)c and (1)d, which refer to draft documents and draft legislation. But I don’t see why (1)a and (1)b should be exempted from access. I do note that these exemptions are not applicable records more than 30 years old (see subsection (3)), which confuses me again as per Part Three, Section 13, subsection (1) (see above). However I think that 30 years is too long, and it would be better to reduce this to at least 15 years instead. I am okay with Section 29 (referring to Ministerial Repsonsibility) and Section 30 (Deliberations of public authorities) though; they seem quite reasonable. While I realise that Section 33, subsection (1)b (the record contains information communicated in confidence by a State or an international organization of States), is a standard provision, I reject any notion of secret international treaties or agreements on a matter of principle.

I oppose Section 34 – Governor’s responsibilities and communications with the United Kingdom. I see no reason why these should be exempt. At most I’ll accept their temporary exemption, along the lines of Cabinet documents being exempt for a period of time (preferably 15 years at most, same as my position on Cabinet documents above).

I admit that Section 38, subsection (1) (A record is exempt if its disclosure is prohibited by any statutory provision, other than this Act) confuses me and doesn’t seem to make much sense. Can anyone tell me what this actually means?

I oppose Section 39 – Non-disclosure of the existence of a record, which states that:

Where a request is made to a public authority for access to a record which is, or if it existed would be, an exempt record, the authority shall, if it is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, refuse the request and refuse to disclose whether or not the record exists.

To me that just seems wrong. I do not understand the rationale of this provision, and feel that if information is found to be exempt, then they should just say so and not adopt a ‘neither confirm or deny’ position. I am open to someone explaining the rationale of this one to me.

I don’t have any issue at the moment with Part Five or Six of the document. Which brings me to Part Seven – Office of Information Commissioner.

In Section 49 – Establishment and appointment – I feel that subsection (2) (the Information Commissioner shall be appointed by the Governor after consultation with the Premier, who shall first have consulted the Opposition Leader) needs to be altered a little. I would like to see it changed to read:

The Information Commissioner shall be appointed by the Governor on the nomination of the Parliament.

I would like to stress subsection (4) which reads that:

In the exercise of his or her functions, the Commissioner shall not be subject to the direction or control of any other person or authority.

As such the Information Commissioner will be an independent body similar to the Ombudsman, and not under the control of the Cabinet Office as I was previously led to believe.

Under Section 54 – Powers of Commissioner – I feel that subsection (4) needs amended. This subsection reads:

A person who fails or refuses to comply with a requirement under this section or who hinders or obstructs the Commissioner in the performance of his or her functions under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 6 months or both.

I feel that the punishment for this offence is too slight and should be amended, with the financial fine being increased to at least $10,000, although I am, at the moment, okay with the term of imprisonment.

In Part Eight – Miscellaneous – I am not sure if I’ve simply overlooked it, but I don’t know which Minister it is referring to. I would assume it refers to the Minister of Justice, the Attorneys General, but I am not sure. I’ll have to go back and read over the document again I guess. Section 62 – General Offence – seems redundant to me, being identical to Section 54 (and my suggested amendment to Section 54 naturally extends to Section 62).

I am unsure about Section 63, subsection (2) which reads:

The Minister may appoint different days for different provisions of the Act. (For coming into effect)

I do not understand why this should be the case; the whole act should in my opinion come into effect at the same time.

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One thought on “Looking Over The Draft PATI Legislation

  1. Well Jonathan – I take my hat off to you for having the patience to work your way through this.

    In short, it is either simply very badly crafted and the obvious confusions will be removed prior to implementation, or it is deliberately written to be confusing, unhelpful and to allow for ‘wiggle’ room by officials. I wouldn’t put that past this Government.

    I think I said on another blog that this is intended to be – and will become – a paper tiger, i.e. useless in a practical sense. I am still of that opinion. It stems from my belief that this Govt, is not genuinely interested in making information available to the public, but is caught having to do something simply to be able to say…”we did it”. If they were genuinely interested in being more open, the whole process as described would be more straightforward and less tortuous.

    Your reference to Section 28 (Cabinet Documents) says it all. Isn’t everything going to fall into the…”is proposed by a Minister of Government to be so submitted” trap? I can see it now…“Sorry – we can’t answer that request as the information is contained in a document that the Minister is/was proposing to submit to Cabinet”.

    I am also wondering who – In Bermuda – will actually use the legislation. Given the polarization of politics along racial lines, and the amazing way that Bermudians at least appear to not be concerned about many of the day to day issues of Government, I really can’t see ‘Joe Public’ having the interest in seeking information. Further, I suspect you will need to be very tenacious to stay with this process. Maybe the media might use it? We will then see the following in the RG….”The Gazette’s request for information under the Pati legislation has still not been responded to”.

    The idea of not making the legislation retrospective is of course rubbish and an insult. It makes a mockery of the whole thing and – once again – stuffs it up the average Bermudian.

    Anything to protect their sad little asses I think – both PLP and UBP!

    I haven’t addressed the issues you specifically raised, as I am struggling frankly to get off first base where this puerile rubbish is concerned. The only question I am left with is why it took so long to introduce a non-starter?

    Amazing.

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