PATI & Retrospectivity

I was just reading over the discussion paper on PATI published in 2005. I see that the question of whether or not PATI would be retrospective or apply only to information created after the date of the legislation having been passed was raised there. The relevant section is 2.5, Retrospection, which reads:

The Government is still considering whether PATI legislation should only apply to information created after the date that the legislation is passed, or if the law should be completely retrospective. Applying the legislation to information created before the PATI bill is enacted would provide access to a greater amount of information. However, retroactivity would also generate significant costs to establish the enhanced records management systems that would be required and to potentially hire additional staff to collect, collate and manage the information.

I should also note that this discussion paper also defines the terms ‘vexatious’ and ‘voluminous’ as I would have liked seen added to the ‘interpretation’ part of the draft legislation. I personally would advocate for these interpretations to be clearly added to the draft legislation. The discussion document defines these as:

The term “vexatious” describes requests from people who attempt to use public access to information to frustrate the day-to-day activities of government, or to harass individual public servants. Where a pattern of abuse is apparent, requests made by a particular requester can be labelled “vexatious” by the decision-maker.

The term “voluminous” refers to requests for information that would require a large volume of information to be released. These types of requests cannot be provided without diverting substantial resources or
causing disruption to the day-to-day functions of government.

Furthermore this section clarifies that:

Where requests for information are deemed vexatious or voluminous, government would be able to deny access. However, to prevent genuine requests being denied because they appear to be vexatious or voluminous, these cases would be automatically referred to the Information Commissioner for an independent review.

[NB – the relevant section here is 2.14.]

Other interesting parts of the discussion paper that should be noted when reviewing the draft PATI legislation are sections 4.6.9 and 4.6.10. Section 4.6.9, entitled Decision Making & Policy Advice, states (in part) that:

A number of countries have exempted decision-making and policy advice, or have found ways around disclosing this type of information. The Government feels that taking this approach would be a mistake. Being informed about how and why important decisions are made is fundamental to the democratic process and the community’s ability to participate in public affairs. In other jurisdictions, refusing to make policy advice available publicly has undermined one of the goals of public access to information – to increase public participation in decision-making. If the public has little or no access to the background information, opinions, advice, and facts that went into a decision, then the ability to voice informed opinions would be severely undermined.

Therefore the Government proposes that decision-making and policy advice would not be
completely exempted from PATI legislation.

While section 4.6.10, Deliberations of the Cabinet, reads:

Historically, Cabinet records have been exempt in order to protect ministerial responsibility, the hallmark of Westminster style governments. This principle supports the long-standing convention that decisions flowing from Cabinet are the collective decisions of the Government. Prematurely disclosing Cabinet deliberations can undermine ministerial responsibility and impair the Cabinet’s ability to make important decisions based on free and frank discussion.

However, disclosing Cabinet decisions once they are implemented has no negative impact on ministerial responsibility, and would give the public that information well in advance of the existing 30-year rule.
Therefore, the Government proposes that any information that would prejudice Cabinet’s ability to make decisions collectively, including Cabinet deliberations, would be exempt from PATI legislation and not be released. It is also proposed that Cabinet decisions be disclosed to the public, either proactively or on request, but after they are implemented and subject to all exemptions under the legislation.

And section 4.7, Ministerial Certificates, is also of interest, reading:

Some jurisdictions give government Ministers and certain other public officials the power to prevent information from being released through the use of veto certificates. However, these certificates have been highly criticised by independent bodies such as Law Reform Commissions and ombudsmen because they are subject to abuse and lack the oversight necessary to ensure that PATI legislation is administered fairly. The Government feels that the proposed exemptions for Bermuda and the appeals process as laid out in Section 6 adequately address releasing or withholding information. The use of certificates is therefore unnecessary, and not in keeping with the spirit of PATI legislation.

Annex D, ‘List of International Exemptions – A Comparative Approach’, is also worth reviewing for reflecting on the proposed areas of exempted information in the draft PATI legislation.

While I can understand that making the act retroactive would ‘generate significant costs’, and therefore the option of making it ‘forward looking only’ is attractive, I think they have made a mistake for opting for the cheap option. After all, the same document also reads (section 8.0):

Although public access to information would require additional expenditure of funds, it has a number of cost benefits such as improved records management, and increased efficiency and accountability.The resulting improvement in government effectiveness makes public access to information worth its financial cost to Bermudian society.

Again, I can understand the bureaucratic and financial costs involved in making the act retroactive (and the discussion paper summarises many of these in sections 5.1 and 5.2). However the act of not applying the legislation retroactively casts suspicion on the motives of the incumbent government and generally reduces the credibility of the exercise as a whole. It would be far better to state that information created following the implementation of the legislation would be immediately accessible, and that information dating prior to that date will be phased into accessibility over time. Even one retrospective year added on each year would be better than nothing and go some way into allaying any suspicions.


15 thoughts on “PATI & Retrospectivity

  1. “When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that justifies it.”

    Frederic Bastiat

  2. Jon, it’s not just speculation that things are being covered up. If the legislation is not retroactive, things WILL be covered up. It’s pretty obvious seeing as the UBP isn’t calling for retroactivity either.

    Hell, if cost is an issue, let’s trim the travel budget and find some of that missing 800 million. Uncovering ONE misappropriation would make the whole exercise worthwhile.

  3. Actually Renaissance Man I think you’re incorrect. What’s left of the UBP said this on the lack of retroactivity:

    Opposition MPs Grant Gibbons and John Barritt said at first glance the lack of retroactivity was a major concern.

    Former UBP leader Dr. Gibbons said: “The fact that the draft bill specifically excludes access to records prior to the coming into operation of the legislation is disturbing and would appear to seriously undermine the credibility and purpose of the bill.

    “The lack of retroactivity also seems to be at odds with best practice established in other jurisdictions and hopefully will be removed following public consultation and before the bill is formally presented to the House.”

    Mr. Barritt, Opposition spokesman for legislative and public administration reform, agreed that the law needs to be retrospective. “[It’s] very important and also very critical to any FOI law which is to be meaningful.”

  4. Thanks for the correction, Christian.

    Although, they need to be much more forceful with those statements, and make it so the PATI act does have retrospection. It’s no damn good without it.

    This still smells of a cover-up, seeing as it’s consciously excluded.

  5. Your last sentence speaks volumes, Ren……..Volumes and PATI……………Your a joke…….then again, just depends on which side of Happy Valley Road you live and what brought you to your dwelling………………..

    Ha ha ha,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

  6. PATI legislation that is not retroactive should be wholeheartedly rejected. The half-hearted soundbites offered up be the remaining UBPers leaves one to speculate that this was a deliberate omission in the interest of keeping past [and present] misdeeds concealed and smacks of a self-serving Government.

    One would think that a PLP Government who have such a penchant for bringing up the past misdeeds of the Opposition would suddenly want to focus on the ‘present’ (present meaning 2-3 years from now) when given the opportunity to actually publically share with us some of these past Government’s trangressions… Too many hands in the collective cookie jar. Thanks guys.

  7. Has it ever crossed anyone’s mind that they don’t want it retroactive because of the last 10 years of PLP rule or last few years of Dr. Brown rule? What would UBP have to lose by going retroactive with PATI? Things can’t get any worse for them than they already are. It is more likely that Dr. Brown doesn’t want the last couple of years to be shown that anything else.

  8. Sara,
    Yes, it has and you have hit the nail squarely on the head. No retroactivity and under the control of the Cabinet Office -sums it up very simply that it has no teeth and is absolutely useless, but will those who can bring in real PATI/FOI see the absolute need for changes and carry them through? Unlikely if the non-event (“we’ll deal with the Premier”) at this year’s PLP Conference is a guide.
    By the way why is 2-3 years needed to enact? Is this something never enacted elsewhere? Cayman has just enacted such a statute, is it that different in Bermuda? Of course it isn’t. The “Julian Hall” act came in quickly enough with all its faults on the basis that it could be changed.
    While hotels close and IB moves eleswhere, construction evaporates and tourists vanish, the main event seems to be laughing at the demise of the Mid Ocean News. The next 6-9 months is going to be very ugly unfortunately as Bermuda sinks down into the recession that has been delayed, but will impact the ordinary Bermudian – grassroots PLP, only to see the elites have already deserted them.

  9. Hey Robert,

    I just want to point out that the legislation would be under the Cabinet Office, but the position itself, the Information Commissioner, would be an independent public office along the same lines as the Auditor and Ombudsman.

    Also, it is not at all unusual for there to be a period of time before the legislation comes into effect; in all the PATI legislation I have read over the 2-3 year period is in place.

  10. @J Starling

    2-3 years may be all well and good for a massive country which huge amounts of records but, we’re talking about Bermuda here and 2-3 years is completely unacceptable. The government needs to be reminded who it works for.

    PATI should be implemented for all computerized records within the year.

  11. The day the PLP opens the books of the government is the day they lose power. We won’t see it under the current leadership.

    They’ll claim ‘PATI’ in their ‘strategic delivered public information pieces’ – delivered on their website, requiring sign off from the premier and editing by any cabinet member.

    Face it, they only survive because of mis-information.

    Imagine if we actually knew how bad tourism was. How bad our public sector over-spending is. How the PLP expenses are actually broken down.

    Never happen.

    And the sheep will continue to happily eat the last few patches of grass…

  12. @ Nioe, if you look at Cayman, which is perhaps the most comparable country to us, their Freedom of Information Law was passed in 2007 and came into force in 2009. While I agree that the process could be sped up (indeed, the Cayman example is a bit misleading and is more one year than two), I do not think a two year period is excessive to see its introduction. Three years, yeah, that is too excessive in my opinion.

    I agree that all computerised records should be available within the year, and in practice I think you will find that to be the case. How far back do computerised records go though? And are all of them in a format that is consistent and readily accessible? I doubt even all the Ministries at the moment use the same format.

  13. I think retroactive PATI legislation would be a key step forward if this Government is really interested in healing this country. Opening the books so to say will either confirm or put to rest once and for all the “boogeymen” that have been conjured up and wielded as political tools in order to manipulate the electorates perceptions of both parties, and ultimately, of each other.

    If there is such thing as Truth, then both the UBP and PLP should view this as crucial, and indeed the people of Bermuda should demand it. If this legislation is allowed to pass sans retroactivity then we would have missed an important opportunity for honesty.

  14. Lyndon Johnson signed the FOI Act into law in 1966. It didn’t take a long time for records to start to be made available in the US, a very large country. Less than a year, in fact.

    Cayman suffers from some of the same problems that we do: that is the small size means it’s all too personal, and therefore the “privacy” of the politicians seems to take precedence. If the country took precedence instead, then we’d be better off to begin with.

    There’s no reason it couldn’t take effect virtually immediately, and start on the retrospective stuff at the same time.

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