PATI Bill Passes In The House Of Assembly

Mr. Speaker and Honourable Members, I am pleased to rise before this Honourable House to introduce the Public Access to Information Amendment Bill 2014 (the Bill) for second reading. It should be noted that, even after over two years of the Act being passed by the Legislature, the PLP Government did not proceed with implementing PATI. In less than two months after I was appointed as Premier, I am tabling the enabling legislation that is required to ensure that PATI will be operational by April 1st 2015.

Mr. Speaker, public access to information (PATI) is the hallmark of a modern democracy which has, as its primary tenets governance, accountability and transparency. Indeed, there are more than 90 jurisdictions world-wide that have made legislative provision for members of the public to have access to the records and information held by public authorities.

Mr. Speaker, Honourable Member swill recall that subsequent to the 2003 Throne Speech, an extensive research and consultation process was undertaken by the Government which included a presentation to the Legislature of a Discussion Paper on PATI in 2005. This presentation was followed in 2009 by the release for public consultation of a draft Public Access to Information Bill with respect to which in excess of 500 submissions were received. Mr. Speaker, the consultation process culminated in the introduction and successful passage through the Legislature of the Public Access to Information Act 2010 (the Act) which, upon its commencement on April 1st, 2015, will permit
public access to the records of public authorities within statutory parameters.

Mr. Speaker, the purpose of PATI, as clearly stated in section 2 of the Act, is to – (a) give the public the right to obtain access to information held by public authorities to the greatest extent possible, subject to exceptions that are in the public interest or for the protection of the rights of others; (b) increase transparency and eliminate unnecessary secrecy; (c) increase the accountability of public authorities; (d) inform the public about the activities and decision-making of public authorities; and (e) have more information placed in the public domain.

Mr. Speaker, the Bill today contains proposed amendments which are intended to clarify and expand upon the provisions in the Act pertaining to notice periods, penalties, exemptions from disclosure, and fees. In particular, it is proposed to amend the time period for responding to requests and for providing information from 28 days or four weeks to six weeks to give public authorities more time to research requests. Amendments are also proposed to add the Attorney General’s Chambers and the Department of Internal Audit to the list of public authorities to which the Act does not apply so that records obtained or created by these departments, with the exception of records relating to general administration, cannot be disclosed.

Mr. Speaker, the implementation of PATI will represent a significant departure from the guarded record- keeping which may be characteristic of some public authorities, to a “lifting of the veil” which shrouds Government records thereby promoting and encouraging a culture of transparency and accountability. However, it is important to note, and I wish to emphasize this, that there is a substantial body of information that the public already has access to where the release of information is, in some cases, authorized or mandated by existing legislation. Such information includes registers, annual reports, brochures and other information relating to the operation and functions of the public authority.

This information can be obtained without cost or upon payment ofa fee prescribed under the Government Fees Regulations 1976. Mr. Speaker, Honourable Membersare reminded that the definition of “public authority” includes a statutory body and every entity that is substantially funded by monies authorized by the Legislature. Such entities includeBermuda College, Bermuda Hospitals Board, Bermuda Tourism Authority, Bermuda Land Development Corporation and WestEnd Development Corporation.

Mr. Speaker, prior to the implementation of PATI, public authorities will be encouraged to continuously make other categories of information available to the public so that access is afforded without the need to make a request under the Act. Indeed, section 6 of the Act requires public authorities to provide information to the general public at intervals so that requests to obtain information under PATI are really a last resort. The Bill proposes an amendment to section 6 of the Act to require public authorities to annually inform the public of the types of information they hold. The amendment also clarifies the means by which information must be provided.

Mr. Speaker, the Bill expands upon the provisions pertaining to exemptions from disclosure. In particular,information received in confidence between countries which is contained in tax information exchange agreements, referred to as TIEAs, cannot be disclosed. The exemption does not apply to information of a statistical, technical or scientific nature that does not infringe upon the confidentiality agreements between countries. This proposed amendment ensures that Bermuda continues to be compliant with the relevant OECD international standards. The Bill also extends the categories of exemptions under the Act to include records relating to the preparation of legislation such as drafting instructions, draft Bills and draft statutory instruments.

Mr. Speaker, the principle of legal professional privilege is a fundamental principle of justice which grants protection from disclosing confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. In the case of the Attorney General’s Chambers, communications by Government’s legal advisors to government departments are privileged information. Likewise, communication between the Director of Public Prosecutions, defendants, police and other lawyers is confidential or privileged and disclosure would compromise pending or future legal proceedings. The Bill proposes amendments to sections 35 and 37 of the Act to ensure that records held by the Attorney General or the Director of Public Prosecutions, that are the subject of legal professional privilege, are exempt records that cannot be disclosed to the public.

Mr. Speaker, proposed amendments to section 64 of the Act create an offence and impose penalties of fines and imprisonment where public officers act with the intention of preventing disclosure of information by altering, erasing, destroying or concealing records. A person who commits an offence under this section is liable on summary conviction to a fine of $10,000 or to imprisonment for six months or to both such fine and imprisonment. It is important to note that provision has been made to ensure that proceedings cannot be brought against any person who acted in good faith in the exercise of a power or inthe performance of a duty or function of their employment with a public authority.

Mr. Speaker, proposed amendments to section 65 of the Act preserve the existing provision which creates a general offence of knowingly contravening any provision of the Act or Regulations made under the Act and imposes penalties for summary conviction. However, the position is clarified by a new subsection which mirrors the proposed amendment to section 64 of the Act by ensuring that civil or criminal proceedings cannot be brought under this section where the officer of the public authority acted in good faith.

Mr. Speaker, the Bill amends the Schedule to the Government Fees Regulations 1976 by inserting a schedule of fees to be charged for production of information. In establishing the fee structure, a comparative analysis of public access schemes in other jurisdictions including the Cayman Islands, Trinidad, Canada, Jamaica, Ireland, Scotland and the United Kingdom was undertaken. As a result, a simple fee structure was devised which is aimed at providing access to public records without imposing a financial burden that may have the unwanted effect of discouraging the public from making requests. Modest fees are proposed for photocopies and photographs in Schedule 3 to the draft Regulations. However, there are other fees proposed for the reproduction of a record which reflect the actual costs incurred by the public authority based on hourly rates plus the actual costs of the reproduction medium. Fees are not intended to be a bar to access. However, where it is determined, after implementation of PATI, that the production costs to public authorities have increased substantially, an increase of the fees may be considered.

Mr. Speaker, affording the public access to the records of public authorities must and will be managed carefully. During our recent visit to Cayman Islands we discussed their Freedom of Information Act and implementation and have gained an understanding of some of the challenges they have managed. An implementation plan has been constructed to provide extensive training which includes the establishment of internal procedures to ensure that officers of public
authorities who are discharging functions under the Act understand and adhere to their statutory responsibilities.I would like to thank the Public Service in advance for their support and commitment to this initiative. Further, as we plan for implementation, the Government intends to engage the Unions in the process where necessary.

Mr. Speaker,information will also be provided to members of the public as users of the access regime so thatthey are well-informed of their rights and the process by which access to information can be obtained. It is expected that the public will continue to have questions relating to the process both before and after implementation and such questions will be directed to the appropriate Government department. In addition to these initiatives, the infrastructure necessary to support records management will also be further developed so that the information held by public authorities can be located and produced in a timely manner.

Mr. Speaker, as with any new initiative of this magnitude, the implementation of PATI will be continuously assessed and monitored and the legislation amended, if necessary, to clarify any practical or legal issues. The public will be made and kept aware of any new legislative developments aimed at making the scheme more effective as proposed amendments to the Act or Regulations must be approved by both Houses of the Legislature. The impact of providing access on the resources of public authorities will also be continuously monitored in order ensure that, while
access to information is facilitated, the efficient operation of public authorities is not compromised.

In summary Mr. Speaker, the Government will adopt a fair and balanced approach to PATI which will serve the needs and interests of both users and access providers in order to promote and maintain transparency and accountability with regard to the acts and functions of all public authorities.

Thank you Mr. Speaker

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