ICO Ruling Impacts BTA’s Salary Disclosures

[Updated] Information Commissioner Gitanjali Gutierrez has issued Decision 01/2018, which “reversed a decision by the Bermuda Tourism Authority [BTA] to withhold the entire record” in response to a request made under the PATI Act for records related to employee compensation.

“The Information Commissioner ordered disclosure of information related to a discretionary financial benefit and a redacted version of the withheld record to safeguard personal information,” the Information Commissioner’s Office said.

“BTA had originally withheld access to the record under section 25[1][d] of the PATI Act for records whose disclosure could reasonably be expected to cause prejudice to negotiations and under section 30[1][b] when disclosure would have a significant adverse effect on management functions.

“During the Information Commissioner’s investigation, BTA made a late assertion of the personal information exemption under section 23[1] of the PATI Act, which the Information Commissioner considered.

“The Information Commissioner found that part of the withheld record did contain personal information, such as an employee’s actual base salary, start date, and performance evaluation information.

“In considering the public interest test, the Information Commissioner weighed “the substantial privacy interest of individuals who are BTA employees” against the “strong interests in accountability and transparency for public expenditures and the need for better understanding of BTA’s compensation process”. In light of “the extensive public disclosures BTA has already made”, the Information Commissioner found that disclosure of actual compensation figures would be an “unjustified intrusion into the personal information of employees at BTA”.

“The Information Commissioner found, however, that some of the compensation details that BTA previously published, such as actual base salaries, were in “band ranges that are too wide, making it difficult for the public to get a true picture of the effectiveness of its public spending”.

“As a result, the Information Commissioner concluded that “to promote the public interest in transparency and the effective use of public funds, while continuing to protect the privacy interests of the employees”, BTA must disclose its actual staff salary bands in a maximum of $10,000; actual maximum incentive percentages for Chiefs in bands of a maximum of 5%; and actual performance incentive payments for Chiefs in bands of a maximum of $10,000.

“The withheld record also included information about a discretionary financial benefit. The Information Commissioner found that this information was excluded from the definition of personal information by virtue of section 24[2][c] of the PATI Act.

“The Information Commissioner noted “that disclosure is particularly important with respect to discretionary financial benefits paid from public money because such an award is not based on set criteria for granting the benefit or calculating its amount, as is the case with contract payments or performance incentive payments.

“Disclosure through the PATI Act allows for public accountability for the discretionary spending of public funds”. The Information Commissioner also found that the exemption under section 30 for prejudice to negotiations was not justified because no negotiations were identified involving the employees to whom the information relates, as required by this exemption.

Update 4.05pm: BTA Chief Operations Officer Karla Lacey said, “The Bermuda Tourism Authority acknowledges the Information Commissioner’s ruling. We are satisfied on the basis that it upheld our position that the 2015 PATI Request would have resulted in an “unjustified intrusion into the personal information of employees at BTA”. And since the information being sought by the submitter had already been made public, the request required no further action on the part of the BTA.

“However, the Information Commissioner has asked the BTA to refine the previously released information and present it in a different way. This task is underway and when completed the information will be placed on our website. The BTA is a leader among its peers in the area of transparency, releasing compensation information before it was legislatively mandated, and we are happy to comply with this request.

“Additionally, the BTA appreciates the feedback received from the Information Commissioner that the “BTA’s prior openness about its public spending is commendable” and her “appreciation of the BTA’s ongoing cooperation, understanding and engagement” as we worked together through one of the first reviews ever conducted by the Information Commissioner’s Office. For the full background on the 2015 PATI Request [257] visit our website’s PATI page.”

The Decision 01/2018 follows below [PDF here]

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