“Notable Increase In Failure-To-Decide Reviews”
Since 1 August 2023, Information Commissioner Gitanjali Gutierrez has issued eight decisions “because a public authority did not complete its internal review on time” and the ICO also has three pending cases for the same reason, with two PATI requests dating as far back as late 2022.
A spokesperson said, “By August 2023, the ICO saw a significant increase in decisions involving instances when a public authority was unable to issue a timely review of a PATI request. If a PATI requester disagrees with a public authority’s response, they have the right to an internal review within six weeks of asking for one. Then if they do not receive a timely decision, they have a right to go to the Commissioner for her independent review. This type of review addresses the head of a public authority’s basic obligation to review a PATI response by the statutory deadline.
“In August and September, Commissioner Gutierrez ordered the following public authorities to issue an internal review decision to the requester:
- Decision 21/2023, Ministry of Finance Headquarters, where the PATI request asked for records on certain tech companies and the Fastpass port-of-entry system. The Ministry Headquarters complied by issuing its internal review before the Order’s deadline.
- Decision 27/2023, Bermuda Police Service, where the PATI request asked for records about a criminal complaint. The BPS complied by issuing its internal review before the Order’s deadline.
- Decision 28/2023, Customs Department, where the requester asked for records about the requester and their company. The Department complied by issuing its internal review before the Order’s deadline.
- Decision 30/2023, Bermuda Police Service, where the requester asked for records relating to themselves. The BPS complied by issuing its internal review before the Order’s deadline.
- Decision 33/2023, Bermuda Police Service, where the PATI request asked for records of vendor payments related to specific investigations. The Commissioner ordered the BPS to issue its internal review decision by 10 October, and compliance is pending.
“Commissioner Gutierrez did not issue an order in another set of decisions because the public authority worked to bring itself into compliance after being notified of her independent review:
- Decision 25/2023, Ministry of Legal Affairs and Constitutional Reform Headquarters, where the PATI request asked for records about the Misuse of Drugs Act and medicinal cannabis.
- Decision 26/2023, Ministry of Legal Affairs and Constitutional Reform Headquarters, where the PATI request asked for records about legal aid case transfers.
- Decision 29/2023, Department of Public Prosecutions, where the PATI request asked for payment records related to a constitutional claim filed by a specific lawyer.
“These decisions reflect a notable increase in failure-to-decide reviews by the Commissioner in 2023. Of the 34 decisions issued so far this year, 16 were for a public authority’s ‘failure-to-decide’. For context, the Commissioner issued 16 of them in 2022 and 14 in 2021.”
“As Bermudians and residents’ use of the PATI Act continues to increase year-over-year, public authorities may face staffing or resource issues. These and other factors may contribute to the increase that the ICO is experiencing with failure-to-decide decisions. The increase does highlight the ongoing need for good PATI practices and adherence to the Minister’s Practice Code on the Administration of the PATI Act to ensure that, at a minimum, PATI requesters receive a review of their PATI request,” Commissioner Gutierrez stated.
“It should not require a decision and order from the Information Commissioner to initiate a response from the head of a public authority, when a requester exercises their PATI right to ask for an internal review. When public authorities issue timely internal review decisions, the public, public authorities and the ICO can focus efforts on the important question of whether the public records should be disclosed or withheld.”
This story is hilarious! Does Ms. Gutierrez realize that the ICO is dealing with Government employees who have no sense of urgency? Is she aware that there is nothing in the PATI Act with teeth for failing to meet any legal deadline?
No one gets fined for failing to comply. No one gets an official reprimand. No one gets fired.
If/when an internal review is completed, it is just a rubber stamp on what was not done. No one gets fined for failing to comply. No one gets an official reprimand. No one gets fired.
Processing PATI requests is not rocket science. If the designated people cannot get the job done, get someone in the position who can.
If there are unqualified people as heads of the departments then it filters down to the designated people that cannot get the job done whether they are capable or not .
This governments plan to so called Bermudianize the work place has resulted in employees that have no clue or don’t care , just waiting for the end of the week to get a pay cheque.