Okay, so last week was a little hectic for me, with the graduation ceremony and reunions with friends, as well as saying goodbye to some close friends. All of which meant I left my PATI submission to write on Sunday. I haven’t received any confirmation back saying that my submission was received, but I have no doubt that it was. I see that Christian over at politics.bm has posted his submission on his site, and I thought it would be a good idea to post mine as well; kind of a transparency approach to what submissions were made.
RE: PATI Feedback
I am writing to you concerning the request for public feedback and constructive criticism of the Draft PATI document. I have read through both the draft document and its companion document, and have provided my thoughts on the proposed legislation below. I would like however to commend the Government for its decision to move forward with PATI, and in particular thank the workers of the Central Policy Unit for their diligent and excellent work on this matter.
I have attempted to provide feedback in the order of the draft document itself, quoting the relevant section where possible.
In summary however my primary concern about the draft legislation is the proposal that PATI not be retroactive. In addition I am opposed to the proposed withholding of certain documents for a period of thirty years, and the exemptions provided for documents to or from the Governor. My remaining criticisms of the draft legislation are relatively minor and miscellaneous amendments however.
I feel that the list of interpretations should be amended to include the definitions of the terms ‘vexatious’ and ‘voluminous’. Adding these definitions to the legislation would clarify some aspects of the act, and in so doing reduce the potential for misgivings being generated in the future.
The two terms are readily described in the 2005 PATI Discussion Paper, and it should be easy to add them to the legislation. In particular the 2005 document states:
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.
Part 3, Section 13
I am strongly opposed to subsection (1) of this section, which effectively limits the scope of PATI to Government documents/records/information created after the enactment of PATI. I understand that there will be problems relating to cost and quality of records keeping historically, and indeed the 2005 PATI discussion document highlights this, stating that:
…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.
Despite these challenges I strongly believe that it is important for PATI to be committed to being retroactive in scope. Such a commitment will go a long way to both dispersing allegations of Government cover-ups, as well as greatly increasing the usefulness of PATI for popular and academic use. It is my belief that the costs of committing PATI to being retroactive are worthwhile, with there being far more benefits for both the Government and Bermuda as a whole. It is my belief that many of the problems relating to making PATI retrospective can be addressed by ‘phasing in’ the retroactive aspects of PATI over time, an option already provided by the draft legislation. This will allow for PATI to prioritise making present information accessible first, more recent information available second, and so forth. With the current economic climate, this will also allow Government to avoid excessive costs at the moment, and capitalising on the inevitable economic upturn that will follow the current crisis.
Part Four – Exemptions
Section 28 – Cabinet Documents – I do not understand the rationale behind subsections (1)A and (1)B, which 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 see no reason why information, as described in these two subsections, should be exempt from PATI. Neither the Draft PATI Companion Document nor the 2005 PATI Discussion Paper make an effective argument for these exemptions, and it is my belief that access to these records would be of benefit to general interest and academic/historical use.
Section 34 – Governor’s Documents – I see no reason why the responsibilities and communications of the Governor with the UK should be exempt at all. I can appreciate the argument that they should be subject to temporary exemption (like various Cabinet documents), for a set period of years, however the draft PATI legislation would appear to give these documents a blanket and indeterminate exemption. As the Governor maintains considerable Executive power under the existing Bermudian Constitution, especially over certain key areas, it is important that these documents be subject to PATI.
Section 38, Subsection (1) – This subsection does not really make much sense to me, and I have trouble understanding what, exactly, it means. It would appear to be a loophole that risks undermining PATI, although I am not sure. It needs clarified and rewritten.
Section 39, Non-disclosure of the existence of a record – This section risks developing mistrust of PATI unnecessarily. I do not understand the rationale of this provision, and feel that if information is found to be exempt then the Government should simply just say that the information is exempt.
30 Year Rule – This Part indicates that exempted records should be made available if they are over 30 years old, and in so doing follows the current practice of the UK equivalent to PATI. However, having reviewed the findings of a UK Independent Review of their PATI equivalent concerning this very rule (please see http://www.30yearrulereview.org.uk), I am convinced that it would be a mistake to adopt the 30 year rule for Bermuda. The UK Independent review concluded that the time period for exemptions be reduced to fifteen (15) years instead. I see no reason whatsoever why this should not also be applied to exemptions in Bermuda. As with the concern of costs and bureaucracy concerning the adoption of a retroactive scope for PATI, I would not be opposed to a phasing in of this time period rule. This ‘fifteen year rule’ for exemptions should be universal for all documents described as exempt, namely Cabinet and Governor’s documents.
Part Seven, Section 54
I feel that subsection (4) requires amending. It is my opinion that the fine described in this subsection is too slight, and should be doubled from $5000 to $10,000. I have no objection to the term of imprisonment being limited to six months. However, I would like to see the punishment to be both a financial penalty and a term of imprisonment, rather than having the option of either/or.
In addition to the above suggestions, I would like to see the Government revisit the Civil Service Code in order to determine if it requires an amendment to include an explicit injunction to keep full, accurate and impartial records of Government business. The Government must also ensure that special advisors non-political records are not exempt from PATI, and that, as de facto temporary civil servants, they, too, are obligated to keep a full record of their actions/reports.