Information Commissioner v Attorney-General

• Jurisdiction: Bermuda
• Judge: Clarke P,Kay JA,Bell JA
• Judgment Date: 24 March 2023
• Docket Number: Civil Appeal 2022 No 7
• Court: Court of Appeal (Bermuda)

Between:

Information Commissioner

Appellant

and

Attorney-General

Respondent

[2023] Bda LR 24

Before:

Clarke P; Kay JA; Bell JA

Civil Appeal 2022 No 7

In The Court of Appeal for Bermuda

Public access to information request — Appeal from judicial review — Whether Commissioner has power to examine records which are excluded by a public authority

The following cases were referred to in the judgment:

Right to Know CLG v Office of the Data Protection Commissioner case No 160447 (Ireland)

Deely v Information Commissioner [2001] IEHC 91

R v Secretary of State for the Environment ex parte Spath Holme Ltd [2001] AC 349

Canadian Broadcasting Corporation v Information Commissioner of Canada [2011] FCA 326

Sugar v British Broadcasting Corporation [2009] UKHL 9

R (Edison First Power) v Central Valuation Officer [2003] UKHL 20

Mr W Bank for the Appellant

Mr P Harshaw for the Respondent

JUDGMENT of Clarke P

Introduction

1. On 14 February 2018 a request (“the Request”) was made by a Royal Gazette reporter, Ms Sam Strangeways, under the Public Access to Information Act 2010 (“the PATI Act”) for access to a number of documents indicated by type. These were:

• (a) The agreement reached on December 8, 2017 between the Ministry and the Brown-Darrell Clinic and Bermuda Healthcare Services regarding payments of $120,000 and $480,000, respectively;

• (b) All communications concerning that agreement;

• (c) Records showing how the amounts were calculated;

• (d) The letter received by the Ministry ‘before action’ in October 2017 pertaining to judicial review of the BHB (Hospital Fees) Amendment Regulations 2017; and

• (e) The response and any further communications.

The above summary is that contained in paragraph 2 of the first affidavit of Ms Gitanjali Gutierres, the Information Commissioner for Bermuda of 17 June 2021.

2. These documents have been referred to as the “Brown Settlement Record”. They relate to a settlement by the Ministry of Health of litigation with the Brown-Darrell Clinic and Bermuda Healthcare Services in respect of a dispute over the impact of the Bermuda Hospitals Board (Hospital Fees) Amendment Regulation 2017 in reducing diagnostic imaging fees. In the evidence of Mrs Dill-Francois, the Deputy Solicitor General they are described in the following terms:

“I should also explain at the outset that the records in issue in this matter consist exclusively of the settlement agreement between the Government, on the one hand, and Bermuda Health Care Services Ltd., Brown-Darrell Clinic Limited and Hamilton Medical Center Ltd (companies said to be owned and/or controlled by Dr Ewart Brown), on the other hand, and the exchange of correspondence (both internal and external) leading to that agreement resolving the dispute over the impact of the Bermuda Hospitals Board (Hospital Fees) Amendment Regulation 2017 in reducing diagnostic imaging fees. Those records are compendiously referred to in the correspondence (conveniently, if inaccurately) as the “Brown legal agreement”.

3. Although the agreement is referred to as an agreement with the Ministry of Health, it is, in truth, an agreement with the Government of Bermuda, which for these purposes is a corporation sole (see section 44 of the Interpretation Act 1951), acting through the Ministry. The Government is represented by the Attorney General, its principal legal adviser. The documents were said to be created in, or obtained by, the Attorney General's chambers.

4. The judicial review conducted by Subair-Williams J, from whose judgment this appeal is brought, is concerned with documents responsive to the Request, which the Ministry of Health and the Attorney General's Chambers have refused to produce on the ground that they fall outside the scope of application of the PATI Act by virtue of section 4(1)(b) thereof. The request in relation to these documents was rejected on that ground on 10 May 2018 by the Ministry's Information Officer. That decision was upheld on an internal review on 30 July 2018. Certain documents, with which this appeal is not concerned, were held to be exempt from production under various provisions of the PATI Act. The distinction between documents which fall outside the scope of the PATI Act and those that are exempted from production under the terms of the PATI Act is to be found in the provisions of the Act cited in [16] below.

5. In her decision of 30 July 2018, the Ministry's Permanent Secretary, Ms Attride-Sterling, provided the following reasons:

“The agreement between the Ministry of Health and the Brown Darrell Clinic and Bermuda and the Brown Darrell Clinic and Bermuda Healthcare Services as well as “the letter before action” are both confidential documents drafted by the Attorney General's (AG's) Chambers. For this reason the request for these documents must be denied based on section 4(b)(vi) of the Act, which states that the Act does not apply to records “created by” the AG's Chambers “in the course of carrying out their functions”. Similarity [sic] all correspondence and communications relating to the agreement and letter before action held by the AG's Chambers were redacted and withheld on the same grounds as the Act does not apply to records “obtained” by the AG's Chambers in the course of carrying out their functions. Legal and professional privilege also apply to these records in accordance with section 35(3) of the Act.”

6. Ms Strangeways approached the Information Commissioner (the “Commissioner” or “IC”) for an independent review of the Ministry's refusal decision. The Commissioner sought to obtain from the Ministry the records that were said either to fall within section 4(1)(b) or to be exempt from production under other provisions of the PATI Act. The Ministry provided a number of documents to the Commissioner; but refused to provide her with copies of the records which it claims fell within section 4(1)(b). In a letter dated 4 July 2019 the Commissioner put the Ministry on formal notice that she was progressing an independent review, and requested access to the withheld Brown Settlement Record by 18 July 2019. She said, inter alia:

“For the records over which the Ministry is asserting either section 4(1)(b)(vi) or section 35(3) of the PATI Act, the requirement to provide the Information Commissioner with access can be satisfied by allowing her to examine the records on site.”

7. The process thereafter was somewhat tortuous. The Judge set it out in her judgment in these terms:

“15. On 19 August 2019 PS Attride-Stirling wrote to the IC's office advising that the Attorney General's Chambers would respond directly to the IC in answer to her request for on-site access. She wrote:

‘… Records over which the Ministry is asserting section 4(1)(b)(vi) or section 34(3)

This assertion has been made on the advice of the Attorney General's Chambers who are the holders of the records for the purposes of these sections. Therefore, Attorney General's Chambers will respond to your request directly under separate cover. The Ministry does not have jurisdiction over these records.’

16. In a subsequent letter dated 26 August 2019 the Permanent Secretary reiterated her request for the IC to liaise directly with the Attorney-General's Chambers. However, by letter dated 13 September 2019, Investigation Officer, Ms Answer Styannes (the “IO”), on behalf of the Commissioner, responded to PS Attride-Stirling asserting that the Brown Settlement Record was being held by the Ministry, notwithstanding that they were created, owned or also held elsewhere. The IO suggested that this meant that the Ministry was required to afford the IC access and examination of the Brown Settlement Record in accordance with section 56(2) of the PATI Act. She added;

‘The Information Commissioner's authority under section 56(2) is notwithstanding “any other act or any privilege under the law of evidence.”… … Given the legally binding nature of the Information Commissioner's decisions, she must consider the facts and circumstances surrounding that particular request. This requires examination of the actual records to allow the Information Commissioner to assess whether reasons used by a public authority to refuse a PATI request, including the provisions under Part 4 and in section 4 of the PATI Act, are engaged’

17. A deadline of 4 October 2019 was accordingly fixed for the IC's receipt of the Brown Settlement Record, failing which she would consider invoking her powers under section 56(1)(a) to issue a summons requiring the appearance and oral evidence of any non-compliant person.

18. On behalf of the Attorney-General, the Deputy Solicitor General, Mrs. Dill-Francois wrote to the IO on 25 September 2019 stating that the Brown Settlement Record is not an exempt record but is instead excluded from the operation of the PATI Act. The Deputy Solicitor General further explained that the IC's powers under section 56 did not apply because the requested material related to the functions of the Attorney General's Chambers, as opposed to its general administration.

19. Over a year later, in a further letter to the Ministry dated 6 October 2020, copied to the Deputy Solicitor General, the IO acknowledged Mrs. Dill-Francois' letter but made the following statements, inter alia:

‘… I particularly note the Ministry's ‘transfer’ of the responsive records to Attorney General's Chambers and the Cabinet Office, mentioned in the Ministry's letter of 26 August 2019.

As I have explained in my letter of 13 September 2019, the Information Commissioner's Office (ICO) will continue to consider the responsive records as part of this review because the records were held by the Ministry at the time of the PATI request. Given the pending review by the Information Commissioner, the Ministry is legally required to retain the responsive records.

To progress this matter, the Information Commissioner requires access to the remaining records listed on the Schedule...