Published Dec 4, 2019 at 3:03 pm
(Updated Dec 4, 2019 at 3:03 pm)
The Information Commissioners Office has upheld a decision not to release communications between the Government and the UK about the airport redevelopment project.
Answer Styannes, the acting information commissioner, said the documents were Pati exempt because they were communicated in confidence by a state.
The ICO decision said on November 28: There is a significant interest in furthering the publics understanding of a substantial investment of public money in a project such as the airport redevelopment.
The acting information commissioner notes, however, that the Ministry of Finance has disclosed the entrustment letters dated November 10, 2014, and July 17, 2015, which were accepted by the Bermuda Government.
Furthermore, the acting information commissioner is of the view that there is a strong public interest in maintaining states expectation of confidence when engaging in free and frank discussion with another jurisdiction to further its interests.
Ms Styannes found that the public interest in maintaining the confidence outweighed the public interest of disclosure.
The original Pati application, made by The Royal Gazette on February 23, 2016, called for records relating to the redevelopment of the LF Wade International Airport.
Documents requested included the correspondence between the British Government and the Government of Bermuda on the agreement with the Canadian Commercial Corporation, including its original approach to the UK.
The application was denied in April 2016, but after an appeal Government released some records of correspondence between the nations in 2018.
The ICO found that the Ministry of Finance had not processed three of the records and urged the Government to make an initial decision.
The Ministry declined the request in a decision released on February 11 this year.
The applicant subsequently filed for an internal review of the decision and, when the decision was upheld, sought an independent review.
In defence of its decision, the Ministry of Finance said the records contained confidential government-to-government communications which the UK Government would expect to be held in confidence.
The Ministry also argued that considerable information had already been released on the project and the disclosure would give the public no further insight into the decision making and rationale behind the project.
The ICO decision stated: Records 1, 2, and 3 are correspondence between the UK and Bermuda Governments discussing the wording of a draft entrustment letter which was to set out the powers delegated to the Bermuda Government by the UK Government in relation to the airport redevelopment project.
In these records, the acting Premier provided the Bermuda Governments detailed views on the draft and proposed changes for the consideration of the UK Government.
The decision added: The outstanding records were not marked confidential at the time they were sent, nor do they contain any statement that the information was provided in confidence.
However, formal designation of a record as confidential (or the lack thereof) is not definitive of whether the record was communicated in confidence.
After a review, Ms Styannes found that the content and nature of the records, along with the circumstances of the communications, indicated that the communications were intended to be kept in confidence.
As such, she found that the Government was right to find against the release of the records.
The decision follows one made by the information commissioner in January to withhold legal advice related to the islands multimillion dollar airport redevelopment.
In that decision Gitanjali Gutierrez ruled the Ministry was right to deny disclosure of the legal opinion on the grounds that it was legal advice and was protected by legal professional privilege.
The Royal Gazette has argued that there was significant public interest in the release of records about the controversial $250 million deal.