Information Commissioner Issues Decision
The Information Commissioner has ruled on a matter involving a decision by the Department of Human Resources to withhold the requester’s personnel records sought under the PATI Act.
A statement from the ICO office said, “On 28 February 2018, Information Commissioner Gitanjali Gutierrez issued Decision 02/2018, which reversed a decision by the Department of Human Resources to withhold the requester’s personnel records sought under the Public Access to Information [PATI] Act 2010.
“The Information Commissioner’s decision addressed the issues of whether records held by a third party contractor were held by the Department of Human Resources, and whether the Department conducted a reasonable search for the records sought by the requester.
“During the course of the Information Commissioner’s review, the Department of Human Resources abandoned its prior reliance on exemptions. Therefore, it was not necessary for the Information Commissioner to issue a decision in relation to these exemptions.
“In this case, some records sought by the requester were in the possession of a third party under the terms of a contract for services between the third party and the Department of Human Resources. Decision 02/2018 considered whether these records are “held by” the public authority for purposes of the PATI Act.
“Information Commissioner emphasized that under section 3[4] of the PATI Act, the definition of public records “held by” a public authority “includes records in the possession of a contractor that concern the services the contractor provides to a public authority under” a contract with the public authority. The Information Commissioner explained that “[s]ection 3[4] ensures that records related, for example, to the provision of public services or the transparency of public spending will be subject to a PATI request and, potentially, public scrutiny.
“This is consistent with the various purposes of the PATI Act”. In Decision 02/2018, the Information Commissioner found that, in this case, the nature of the contract under which the records were held and the services provided placed those records within the meaning of the section 3[4] definition of records “held by” a public authority. Accordingly, the Information Commissioner found that the records were held by the Department of Human Resources.
“The Information Commissioner found that the Department of Human Resources failed to conduct a reasonable search for responsive records, in accordance with section 12[2] of the PATI Act. The Department of Human Resources did not search any electronic records, such as emails, and only searched certain hard copy files during the Information Commissioner’s review. No records in the possession of its contractor were requested or searched.
“Decision 02/2018 requires the Department of Human Resources to search the electronic and hard copy records in its possession. If requested by the Applicant following Decision 02/2018, the Department of Human Resources is also required retrieve records in the possession of its contractor for processing under the PATI Act. A full version of Decision 02/2018 can be access online at ico.bm.”
The full decision notice follows below [PDF here]:
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