[Updated] The Information Commissioner’s Office [ICO] said they “reject a fee that will create a barrier to public access to information and make Bermuda an outlier in the international community.”
This follows after it was announced that the “Government will implement a nominal fee for PATI requests that are not from private individuals requesting information about the data that the Government holds about them.”
Budget Statement:
The 2023 Budget said, “The Public Access to Information Regime [PATI] is a proud achievement of the PLP Government and serves as a way to ensure that the public has access to the information that the Government keeps on them and is better able to understand the reasoning for government actions. PATI increases the Government’s transparency and accountability.
“Despite this, the regime can be cumbersome and expensive. As an example, Mr Speaker, a government authority spent in excess of $300,000 to respond to a single PATI request. These are funds that could have been used to advance the wellbeing of Bermuda but were instead spent researching information. High levels of expenditure on requests are not uncommon, as many government departments have had to halt vital work or hire shortterm consultants to assist in responding to PATI requests.
“Therefore, the Government will implement a nominal fee for PATI requests that are not from private individuals requesting information about the data that the Government holds about them. This nominal fee will not nearly cover the extraordinary amount that researching PATI requests costs the Government, but the Cabinet has deemed it necessary to implement a fee to ensure that at least some of the costs of requests are recouped.”
ICO Statement
An ICO spokesperson said, “The Information Commissioner’s Office [ICO] was not aware of the proposed new fee to make a request under the Public Access to Information [PATI] Act. It was not included in the Pre-Budget Report for public consultation. The Information Commissioner rejects a fee that will create a barrier to public access to information and make Bermuda an outlier in the international community.”
“The proposed ‘nominal’ PATI request fee is highly unlikely to generate meaningful revenue for the Government,” stated Information Commissioner Gitanjali Gutierrez, adding that it could affect “everyday Bermudians’ rights to seek public records that are held on their behalf by public authorities,”
“The fee amount and estimated revenue have not been provided. The new fee appears to be an effort to reduce the number of PATI requests made by Bermudians and residents due to some public authorities’ challenges in meeting their PATI responsibilities, as a substitute for addressing existing needs for proper implementation of public authorities’ responsibilities under PATI.”
The spokesperson continued, “To encourage a reasoned assessment of the benefits and risks of a new PATI request fee, the ICO provides some data.
“In 2021, public authorities reported that Bermudians and residents made 135 PATI requests. The ICO anticipates that approximately 150 PATI requests were logged in 2022. Once the Government shares the fee amount, the 2023-2024 revenue anticipated from making PATI requests may be calculated.
“A new fee is very likely to reduce the number of requests made by individual Bermudians and residents. Because around 47 of 187 public authorities reported receiving PATI requests in 2022, a fee may result in an immediate, short-term benefit of a reduced workload for a quarter of our public authorities.
“Though the media’s PATI requests may generate widespread attention, everyday Bermudians and residents have been quietly making PATI requests about education policies, pension records, procurement documents, work permit concessions and more. During the first five years of the PATI Act, requesters seeking an independent Information Commissioner’s review were divided evenly between the media and the general public.
“If the new fee discourages everyday people from making PATI requests, public authorities may end up handling requests mostly from professionals, such as journalists and lawyers, who can bear the costs. Even this smaller number of requests may still require substantial work, however, and defeat the apparent purpose of imposing a fee.
“The uncertain benefits from reducing the number of PATI requests may come at a cost.
“From 2015 to 2021, the ICO conducted an annual public awareness survey. Over these years, 76-80% of the respondents believed that creating and enforcing the PATI Act is a very important public investment, and 79-88% believed that the right of access to public records is important to them. Public authorities risk a decrease in public trust and reputation if barriers are created to exercise PATI rights that people value.
“As a practical matter, people may be required to go to the Government Cashier’s Office in Hamilton between 9:00am to 4:30pm to pay a PATI fee and obtain their payment receipt before making a PATI request. Since people may be unable to reach Hamilton during these hours, ideally, any fee would be payable online. Going to the Cashier’s Office raises another risk, because the Act requires a requester’s identity be kept confidential.
“The ICO’s 2021 survey found that, after seven years of PATI, only 31% felt confident that, if they were to make a PATI request, the public authority would protect their confidentiality. People announcing their intention to make a PATI request at the Cashier’s Office will not improve public confidence.
“In adopting a rational rather than reactive approach, the PATI Act framework offers an effective alternative approach for the longer term. As one of the last jurisdictions to adopt public access to information, our PATI Act is a model law.
“It provides public authorities with straightforward tools to administratively deny PATI requests that create a substantial and unreasonable burden on a public authority’s day-to-day work. In fairness to a requester, a PATI officer must first offer to discuss ways to amend the request to make it less onerous. If PATI officers lack proper training, it may result in missteps that burden public authorities.
“More broadly, the ICO commissioned two evaluations of the PATI Act that were completed in 2019 and 2020 by leading experts in access to information law. Overall, these evaluations found that the PATI Act offered a robust legislative framework, but challenges arose with its implementation and existing barriers to making a PATI request.
“Improvements included the need for a more active role by leadership to implement the PATI Act; greater support and training for PATI officers, along with embedding this role within job descriptions; using a modernised records management system; and adopting formalised procedures within public authorities for handling PATI requests. Addressing these issues may be more effective in reducing public authorities’ burdens when complying with the PATI Act.
“Information Commissioner Gutierrez has consistently stated that any lessening of the people’s rights under the PATI Act should only be imposed after meaningful consultation with the public, the key stakeholders under the Act.
“The Government’s current policy approach suggests that the changes impacting PATI rights are at risk of being developed behind a veil of secrecy, contrary to good governance and robust citizen engagement. The ICO remains available to provide subject matter consultation on improving the administration of the PATI Act for public authorities and to assist public authorities with managing their PATI work more efficiently and effectively, while safeguarding the people’s right to ask for public information and the opportunity for public authorities to build public trust through greater transparency and accountability.”
Update 7.32pm: A Government spokesperson said: “The UK’s Freedom of Information Act 2000 and the Data Protection [Appropriate Limit and Fees] Regulations 2004 make express provision for the charging of fees based on the number of people and hours it is likely to take to respond to a request under the Act. The UK considers how long it will take and how many people are likely to be required to work on the request. These considerations address determining whether a Department holds the information, locating, retrieving and extracting that information. In fact, in the UK, requests that are determined to take an inordinate amount of time to address can be declined unless better framed to enable a timely search and review of the requested information. Canada’s Access to Information Act also prescribes an application fee for records in certain cases. Far from being an outlier, Bermuda is catching up by setting fees in this area. As the Premier indicated in yesterday’s press conference, work often stops on critical government initiatives and core service delivery by the Public Officers who are mandated to meet deadlines under the Act or set of the Office of the Information Commissioner.”
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