ICO Decisions On Three PATI Requests

Information Commissioner Gitanjali Gutierrez has issued three decisions on PATI requests involving the Ministry of Finance Headquarters, Economic Development Department & Regulatory Authority of Bermuda.

A spokesperson said, “On 4 February 2025, Information Commissioner Gitanjali Gutierrez issued Decision 01/2025, Ministry of Finance Headquarters and Decision 02/2025, Economic Development Department. On 5 February 2025, the Information Commissioner issued Decision 03/2025, Regulatory Authority of Bermuda.

“In Decision 01/2025 and Decision 02/2025, the Applicants asked for all records about tech companies BPMA, InnoFund and i3 as well as Fastpass, a port-of-entry system project. These are related to two earlier decisions, 33/2024, Information & Digital Technologies Department, and 34/2024, Ministry of Health Headquarters, on the same topic. In 01/2025, the Information Commissioner upheld the Ministry of Finance Headquarters’ denial of access to most of the records because disclosure would have harmed ongoing negotiations. The Information Commissioner also found that other parts of records were properly withheld because they contained an individual’s personal information or commercial information of a third party who would have been harmed by its disclosure. The Information Commissioner has ordered disclosure of limited records.

Decision 01/2025 Summary:

“In 02/2025, the Information Commissioner has found that some of the records held by the Economic Development Department fell outside the scope of the PATI Act because they were obtained or created by the Attorney General’s Chambers. She also has found that the Department justified refusing access to the remaining records because their disclosure would have prejudiced ongoing negotiations. The Information Commissioner acknowledged the strong public interest in greater understanding and transparency for the public about the Government’s decision making for its dealings with BPMS, InnoFund and i3, and the breakdown in their working relationship between the Government and companies. The Information Commissioner noted that while the outcome of the current balance of public interests may be dissatisfying, “[i]f the Government is not forthcoming about this situation in the future, the balance of the public interest may very will shift in favour of disclosing records that further accountability and transparency, consistent with the purposes in section 2 of the PATI Act”.

Decision 02/2025 Summary:

“In Decision 03/2025, the Applicant made a PATI request for records about the Regulatory Authority’s approval of BELCO’s proposal to replace its generation assets, including the building of its North Power Station [NPS], BELCO’s decision to optimise the NPS engines for Liquid Natural Gas [LNG] and documentation related to the Regulatory Authority’s oversight of BELCO and the NPS. In her Decision, the Information Commissioner provided a detailed background related to the PATI request, including:

• the statutory role of the Regulatory Authority in Bermuda, including its powers and functions with respect to the regulation of the electricity sector,
• a history of BELCO’s NPS, which was developed to replace aging engines that had been scheduled to be decommissioned, and
• the environmental concerns that arose following the construction of the NPS, and public statements made by both the Regulatory Authority and BELCO related to such concerns.

“At the time that BELCO submitted its proposal to replace its generation assets with the NPS, BELCO requested that certain records, including the proposal itself, be treated as confidential by the Regulatory Authority as they contained BELCO’s or BELCO’s contracting parties’ commercial information. The Regulatory Authority granted a Confidentiality Order for such records. As part of this process, BELCO also provided the Regulatory Authority with a redacted version of its proposal that BELCO accepted was appropriate for public disclosure under the Regulatory Authority Act 2011.

Decision 03/2025 Summary:

“In her Decision, the Information Commissioner affirmed the Regulatory Authority’s internal review decision to refuse access to the records for which the Regulatory Authority had granted the Confidentiality Order. The Information Commissioner also affirmed the Regulatory Authority’s decision to refuse access to parts of records that referred to BELCO’s [or its contracting parties] information, which had been deemed confidential under the Confidentiality Order. This included parts of records provided by consultants that had been contracted to advise the Regulatory Authority on its decision to accept BELCO’s proposal.

“The Information Commissioner, however, reversed the Regulatory Authority’s decision to refuse access to other records or parts of records that had not been subject to the Confidentiality Order, including the redacted version of the proposal provided by BELCO. Apart from one record received by the Regulatory Authority’s legal consultants, the Information Commissioner did not find that the records provided by the Regulatory Authority’s consultants were provided to the Regulatory Authority in confidence or contained the consultants’ commercial information. The Information Commissioner further found that certain records contained personal information and, save for the names and positions of executive public officers, found that disclosure of the personal information in the records was not in the public interest.

“Therefore, apart from certain personal information and information considered to be BELCO’s commercial and confidential information [or the commercial and confidential information of BELCO’s contracting parties], the Information Commissioner ordered certain records to be disclosed.

“Finally, the Information Commissioner found that, with regard to certain items of the PATI request, the Regulatory Authority conducted a reasonable search for records before concluding that no records [or no further records] existed or could be found. For other items of the PATI request, the Information Commissioner found that the Regulatory Authority had remedied any deficiencies in its search during the ICO’s review. For one item, related to the decision to approve BELCO’s proposal, the Information Commissioner found that the Regulatory Authority had not conducted a reasonable search and ordered the Regulatory Authority to conduct a reasonable search for additional records.”

The full version of Decision 01/2025 follows below [PDF here]:

The full version of Decision 02/2025 follows below [PDF here]:

The full version of Decision 03/2025 follows below [PDF here]:

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