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Public Access to Information Act 2010

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Public Access to Information Act 2010
FA E R
N

AT F
TQUO U

BERMUDA

PUBLIC ACCESS TO INFORMATION ACT 2010

2010 : 44

TABLE OF CONTENTS

PART 1
PRELIMINARY

Citation
Purpose
Interpretation
Application

PART 2
PROVISION OF INFORMATION BY PUBLIC AUTHORITIES

Information statement
Provision of other information
Powers of Commissioner in relation to information statements
Powers of Commissioner in relation to other information
Effect of order by Commissioner
Role of Commissioner generally under this Part
Saving for exempt records

PART 3
RIGHT OF ACCESS

Access to records
Request for access
Decision on request
Extension of time
Refusal of request on administrative grounds
Manner of access to records
Access to part of record
Request to amend record of personal information

1
2
3
4

5
6
7
8
9
10
11

12
13
14
15
16
17
18
19

1

PUBLIC ACCESS TO INFORMATION ACT 2010

Fees in respect of access requests

PART 4
EXEMPT RECORDS

Public interest test
Health or safety of individual
Personal information
Definition of personal information
Commercial information
Information received in confidence
Cabinet documents
Ministerial responsibility
Deliberations of public authorities
Operations of public authorities
Financial and economic interests
National security, defence, and international relations
Governor’s responsibilities and communications with the United Kingdom
Law enforcement
Legal professional privilege
Contempt of court and parliamentary privilege
Disclosure prohibited by other legislation
Non-disclosure of existence of a record
Notice to third parties
Expiry of certain exemptions

PART 5
INTERNAL REVIEW

Internal review by authority
Time limit to apply for internal review
Conduct of review
Referral to Commissioner

PART 6
REVIEW BY INFORMATION COMMISSIONER

Application for review
Mediation
Review
Decision by Commissioner
Judicial review

PART 7
OFFICE OF INFORMATION COMMISSIONER

Establishment and appointment
Mandate of Commissioner
Staff
Obligation to maintain secrecy
Privilege

20

21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40

41
42
43
44

45
46
47
48
49

50
51
52
53
54

2

PUBLIC ACCESS TO INFORMATION ACT 2010

Funding for Office and accounting
Powers of Commissioner
Review and investigations by Commissioner
Annual report by Commissioner

PART 8
MISCELLANEOUS

Regulations
Codes of practice
Training and organization
Information officer
Protection against liability
Offence to alter or destroy record
General offence
Commencement

SCHEDULE

Be it enacted by The Queen’s Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:

PART 1

PRELIMINARY

Citation
This Act may be cited as the Public Access to Information Act 2010.

Purpose
The purpose of this Act is to—

give the public the right to obtain access to information held by public
authorities to the greatest extent possible, subject to exceptions that are
in the public interest or for the protection of the rights of others;

increase transparency, and eliminate unnecessary secrecy, with regard to
information held by public authorities;

increase the accountability of public authorities;

inform the public about the activities of public authorities, including the
manner in which they make decisions; and

have more information placed in the public domain as a matter of routine.

Interpretation
In this Act, unless the context otherwise requires—

55
56
57
58

59
60
61
62
63
64
65
66

1

2

(a)

(b)

(c)

(d)

(e)

3 (1)

3

PUBLIC ACCESS TO INFORMATION ACT 2010

“Commissioner” means the Information Commissioner appointed under section 50;

“exempt record” means a record that is exempt from disclosure under this Act by
virtue of a provision of Part 4;

“head” in relation to a public authority listed in column 1 of the Schedule means
that person listed in column 2 of the Schedule opposite that public authority;

“Minister” means the Minister to whom responsibility for this Act has been
assigned;

“personal information” means personal information as defined in section 24;

“prescribed” means prescribed by regulations made under section 59;

“public authority” means an entity listed in column 1 of the Schedule;

“record” means a record held by a public authority, in any form or medium, in
which information is recorded, whether printed or on tape or film or by
electronic means or otherwise, and includes any map, diagram, photograph,
film, microfilm, videotape, sound recording, or machine-readable record
produced by means of equipment or a program;

“requester” means a person who makes a request for a record under section 13 or
a person who makes a request for amendment of a record under section 19, as
the case may be;

“third party”, in relation to a request to a public authority for access to a record
means any person (other than the requester or the public authority) who gave
information in the record to a public authority in confidence, or any person to
whom information in the record relates.

“working days” means a number of days, excluding Saturday, Sunday or a public
holiday.

In this Act, a reference to a record includes, where the context requires, a part
of a record.

In this Act, a reference to a record that is held by a public authority includes
a record that is in the possession or custody of, or is under the control of, that authority.

For the purposes of this Act, any record that is held by an independent
contractor relating to a contract for which the contractor is engaged by a public authority
is deemed to be a record held by that public authority; and there is deemed to be included
in the contract a provision that the contractor shall, if requested by the public authority
concerned, give a copy of the record to the public authority.

Nothing in this Act precludes a person from obtaining access to records under
any other provision of law.

Application
Subject to subsection (2), this Act does not apply to—

(2)

(3)

(4)

(5)

4 (1)

4

PUBLIC ACCESS TO INFORMATION ACT 2010

records relating to the exercise of judicial or quasi-judicial functions by any
court, tribunal or other body or person; or

records obtained or created by any of the following public authorities in the
course of carrying out their functions—

the Office of the Auditor General,

the Human Rights Commission,

the Office of the Information Commissioner,

the Office of the Ombudsman,

the Department of Public Prosecutions.

The reference to records in subsection (1) does not include records relating to
the general administration of—

any court, tribunal or other body or person referred to in subsection (1)(a);
or

any public authority referred to in subsection (1)(b).

PART 2

PROVISION OF INFORMATION BY PUBLIC AUTHORITIES

Information statement
Every public authority shall prepare an information statement setting out—

a description of the structure and organization of the authority and the
legislation governing the authority;

a description of the functions, powers and duties of the authority,
including its obligations under this Act;

a summary of the services that the authority provides, including ongoing
programs of the authority;

a description of all classes of records that are held by the authority, in
sufficient detail to facilitate the exercise of the right of access under this
Act;

a description of all manuals used by employees of the authority in
administering or carrying out the programs and activities of the authority;

a description of the policies, rules and guidelines used by the authority to
make decisions or recommendations in respect to any person;

the name and contact information of the person designated by the
authority under section 62 as the person to whom requests under this Act
may be directed;

(a)

(b)

(i)

(ii)

(iii)

(iv)

(v)

(2)

(a)

(b)

5 (1)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

5

PUBLIC ACCESS TO INFORMATION ACT 2010

any other information that the head of the authority considers relevant for
the purpose of facilitating access by the public to information held by the
authority; and

any other information that may be prescribed.

Every public authority shall update its information statement at least once a
year, and may do so more frequently.

Every public authority shall cause its information statement, as updated from
time to time, to be made available for inspection by the public at reasonable times by—

keeping copies at its principal office;

providing a copy to the Bermuda National Library and to the Bermuda
Archives; and

making copies available electronically, including on any website of the
public authority.

A public authority shall publish a notice in the Gazette indicating the places
where its information statement is available for inspection by the public, including any web
address of the public authority on which the statement is published.

Every public authority shall provide a copy of its information statement, as
updated from time to time, to the Commissioner.

Provision of other information
Public authorities shall provide information to the public at regular intervals

through various means of communication so that the public needs only to have minimum
resort to the use of this Act to obtain information.

Public authorities shall keep a log of all access requests made under section
13, excluding the names of requesters, any other information that could reveal the identity
of the requester and any personal information about any person.

The log shall indicate whether a request has been granted or refused and, in
the case of a refusal, the log shall include the reasons for refusal.

The information in the log shall be made available to members of the public
upon request, together with any information that has been provided pursuant to an access
request that has been granted.

Public authorities shall make their quarterly expenditures available to
members of the public upon request.

Public authorities shall cause to be published in the Gazette on a regular basis
details of every contract entered into by the authority that has a total value of $50,000 or
more, including the name of the contractor, the monetary value of the contract, the goods
and services to be provided under the contract and the time for performance of the contract
(completion or delivery date).

(h)

(i)

(2)

(3)

(a)

(b)

(c)

(4)

(5)

6 (1)

(2)

(3)

(4)

(5)

(6)

6

PUBLIC ACCESS TO INFORMATION ACT 2010

In January of each year, the Minister shall publish a list setting out the title
and corresponding salary range of every position of public officer within the meaning of
section 102(1) of the Bermuda Constitution Order 1968.

Publication of the list referred to in subsection (7) shall be by posting a copy of
the list on the Government website and by providing copies for inspection by the public at
the Bermuda National Library and the Bermuda Archives.

Powers of Commissioner in relation to information statements
The Commissioner may—

provide guidance to public authorities with regard to the preparation of
information statements under section 5; and

review the information statement of any public authority to determine if it
complies with section 5.

Where a public authority has not published an information statement or where
the Commissioner determines that an authority’s statement does not comply with section
5, the Commissioner may issue an order to the authority requiring it to publish its
statement or to bring it into compliance with section 5, as the case may be, within a period
to be specified by the Commissioner.

Powers of Commissioner in relation to other information
The Commissioner may monitor and provide guidance to public authorities

with regard to the provision of other information under section 6.

Where the Commissioner determines that a public authority has not complied
with section 6, the Commissioner may issue an order to the authority requiring it to comply
with section 6 within a period to be specified by the Commissioner.

Effect of order by Commissioner
An order issued by the Commissioner under section 7 or 8 is binding on the public

authority to which it has been issued and, upon the order being filed with the Registrar of
the Supreme Court, it shall have the effect of an order of the Supreme Court and shall be
enforceable in the same manner as an order of the court.

Role of Commissioner generally under this Part
The Commissioner shall foster and encourage the publication by public authorities

of information of relevance or interest to the general public in relation to the activities and
functions of the authority generally, in addition to the information that is required to be
provided under this Part.

Saving for exempt records
Nothing in this Part requires a public authority to publish or provide any

information that constitutes an exempt record under this Act.

(7)

(8)

7 (1)

(a)

(b)

(2)

8 (1)

(2)

9

10

11

7

PUBLIC ACCESS TO INFORMATION ACT 2010

PART 3

RIGHT OF ACCESS

Access to records
Subject to this Act, every person who is a Bermudian or a resident of Bermuda

has a right to and shall, on request, be given access to any record that is held by a public
authority, other than an exempt record.

Public authorities shall make every reasonable effort to—

assist persons in connection with requests; and

respond to requests completely, accurately and in a timely manner.

A requester is not required to give any reasons for making a request.

The identity of a requester shall be kept confidential and, except with the
consent of the requester, may not be disclosed to any person other than a person who is
required to deal with the request under this Act.

Request for access
A request for access to a record under this Act must be made in writing to the

public authority that holds the record.

A request must identify the record or contain sufficient information to enable
the public authority to identify the record by taking reasonable steps to do so.

A request may specify in which form or manner set out in section 17 (1) the
requester wishes to be given access and, subject to subsection 17(2), access shall be given
in that form or manner.

A public authority shall acknowledge receipt of a request within five working
days after receipt of the request, and the authority shall at the same time inform the
requester of the process for dealing with the request and of the requester’s rights under this
Act.

Where a request under this section is received by a public authority and any
record requested is not held by that authority but, to the knowledge of that authority, is
held by one or more other public authorities, the public authority that received the request
shall, not later than five working days after receipt of the request cause a copy of the request
to be given—

to that other public authority; or

in the case of more than one other public authority, to the authority whose
functions are, in the opinion of the head of the public authority that first
received the request, most closely related to the subject matter of the
request.

12 (1)

(2)

(a)

(b)

(3)

(4)

13 (1)

(2)

(3)

(4)

(5)

(a)

(b)

8

PUBLIC ACCESS TO INFORMATION ACT 2010

The head of the public authority that first received the request shall inform the
requester in writing of the other public authority or authorities to whom a copy of the
request has been given.

A public authority to whom a copy of a request has been given under subsection
(5) shall, for the purposes of this Act, be deemed to have received the request at the time of
the receipt by that authority of the copy, and subsections (4), (5) and (6) shall apply in
respect of the request that has been copied to the authority.

Decision on request
Subject to the provisions of this Act, a public authority shall, not later than 28

days after receipt, or deemed receipt, of a request under section 13, decide—

whether to grant or refuse to grant the request in whole or in part; and

if the request is to be granted, the form and manner in which the right of
access to the record concerned is to be given, and the amount of any fee
payable for the provision of access.

A public authority shall immediately after a decision has been made give notice
in writing of the decision to the requester, and to any third party who made representations
under section 39, specifying—

the reasons for the decision, including findings on any material issues
relevant to the decision and particulars of any matter relating to the public
interest taken into consideration for the purposes of the decision; and

the provisions of this Act regarding review and appeal of the decision.

Subject to subsection (4), where the decision is to grant a request, the public
authority concerned shall provide access to the record concerned in accordance with section
17 as soon as possible after the date when the period under section 42 for applying for a
review of the decision has expired without an application having been made.

Where an application has been made under section 41 for a review of a decision
to grant a request, the public authority concerned shall provide access to the record
concerned in accordance with section 17 as soon as possible after—

the date when the period under section 45 for applying for a review of a
decision made under section 43 has expired without an application having
been made; or

if an application under section 45 has been made, the date when a review
under Part 6 in respect of a decision made under section 43 has been
completed.

Extension of time
A public authority may extend the original period of 28 days referred to in

section 14(1) by such further period, not exceeding 28 days, as the authority considers
necessary if, in the opinion of the head of the authority, compliance with the original period
of 28 days is not reasonably practicable because—

(6)

(7)

14 (1)

(a)

(b)

(2)

(a)

(b)

(3)

(4)

(a)

(b)

15 (1)

9

PUBLIC ACCESS TO INFORMATION ACT 2010

there is insufficient time to consider representations made by third parties
under section 39 or to complete any consultations with regard to whether
access to particular information is in the public interest; or

dealing with the request within the original period of 28 days would
substantially or unreasonably interfere with the day to day operations of
the authority.

Where a period is extended by a public authority under this section, the
authority shall, before the expiration of the original period, give notice in writing to the
requester concerned of the extension and the reasons for it.

Refusal of request on administrative grounds
A public authority may refuse to grant a request if—

the record requested does not exist or cannot be found after all reasonable
steps have been taken to find it;

the request does not contain sufficient information to enable the authority
to identify the record by taking reasonable steps;

in the opinion of the head of the authority, granting the request would, by
reason of the number or nature of the records requested, require the
retrieval and examination of such number of records or an examination of
records of such kind as to cause a substantial and unreasonable
interference with or disruption of the other work of the public authority;

publication of the record is required by law and is intended to be effected
not later than three months after the receipt of the request by the authority;

the request is, in the opinion of the head of the authority, frivolous or
vexatious;

the information is in the public domain, is reasonably accessible to the
public or is reasonably available to the public on request under any other
statutory provision, whether free of charge or on payment; or

the fee payable under section 20 has not been paid.

A public authority shall not refuse to grant a request under subsection (1)(b)
or (c), unless the authority has assisted, or offered to assist, the requester to amend the
request in a manner such that it no longer falls under those provisions.

Manner of access to records
A public authority shall give access to a record under this Act by providing the

requester with the information in the record in any of the following forms or manners that
it considers appropriate—

a reasonable opportunity to inspect the record;

a copy of the record;

(a)

(b)

(2)

16 (1)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(2)

17 (1)

(a)

(b)

10

PUBLIC ACCESS TO INFORMATION ACT 2010

a transcript of the information;

an electronic machine-readable device or other electronic device that
contains the information;

a reasonable opportunity to hear or view the record, where the record is of
sound or visual images;

a decoded copy of the information, where the information is in shorthand
or another code;

such other means as may be determined by the public authority.

Where a public authority decides to grant a request and the request is for
access to a record in a particular form or manner, access shall be given in that form or
manner unless the authority is satisfied that—

access in another form or manner specified in subsection (1) would be
significantly more efficient; or

the giving of access in the form or manner requested would—

be physically detrimental to the record,

involve an infringement of copyright (other than copyright owned by the
Crown, the Government or the public authority concerned),

conflict with a legal duty or obligation of the public authority concerned,
or

affect the protection of an exempt record from disclosure.

Where a public authority decides to grant a request but, for reasons set out in
subsection (2), does not give access to the record requested in the form or manner specified
in the request, the authority shall give access in such form or manner as the authority
considers appropriate.

Access to part of record
Subject to subsection (2), where a record requested contains information that

constitutes an exempt record, the public authority concerned shall, if it is practicable,
prepare a copy, in such form as the authority considers appropriate, of so much of the
record requested as does not consist of that material, and the request shall be granted by
offering the requester access to the copy in accordance with section 17.

A public authority is not required to prepare a copy of a record under
subsection (1) if the copy would be misleading.

Where a requester is offered access to a copy of part of a record under this
section, the notice under section 14 shall specify that such access is offered pursuant to
this section and that the copy does not purport to be a copy of the complete record
requested.

(c)

(d)

(e)

(f)

(g)

(2)

(a)

(b)

(i)

(ii)

(iii)

(iv)

(3)

18 (1)

(2)

(3)

11

PUBLIC ACCESS TO INFORMATION ACT 2010

Request to amend record of personal information
Where personal information in a record held by a public authority is

incomplete, incorrect or misleading, the authority shall, on request in writing by or on
behalf of the person to whom the information relates, amend the record—

by altering it so as to make the information complete or correct or not
misleading, as the case may be;

by adding to the record a statement specifying in what respect the
information is incomplete, incorrect or misleading; or

by deleting information from the record.

A request under subsection (1) shall, so far as is practicable—

specify the record concerned and the amendment requested; and

include appropriate information in support of the request.

The public authority concerned shall, within five working days after receipt of
a request, acknowledge receipt of the request and shall, within 28 days after receipt of the
request, decide whether to grant or refuse to grant the request and shall give notice, in
writing or in such other form as may be determined, of the decision of the authority to the
person concerned.

A public authority may extend the original period of 28 days by such further
period, not exceeding 28 days, as the authority considers necessary if, in the opinion of the
head of the authority, compliance with the original period of 28 days is not reasonably
practicable.

Where a period is extended by a public authority under subsection (4), the
authority shall, before the expiration of the original period, give notice in writing to the
requester concerned of the extension and the reasons for it.

A notice referred to in subsection (3) shall—

if the decision is to refuse the request, specify the reasons for the refusal;

if the decision is to grant the request, specify the manner in which the
record concerned is to be amended; and

indicate the provisions of this Act regarding review or appeal of a decision
under this section.

If requested to do so by the requester, a public authority shall provide the
requester with evidence that the record has been amended by permitting the requester to
view the amended record or by giving the requester a copy of the amended record.

No fee is payable in respect of a request under this section.

19 (1)

(a)

(b)

(c)

(2)

(a)

(b)

(3)

(4)

(5)

(6)

(a)

(b)

(c)

(7)

(8)

12

PUBLIC ACCESS TO INFORMATION ACT 2010

Fees in respect of access requests
The amount of any fee payable by a requester for the provision of access to a

record under this Act shall be calculated by the public authority concerned in accordance
with regulations made under section 59.

No fee is payable simply for the making of a request under this Act for access
to a record.

Access to a record under this Act shall not be provided until any fee in respect
of the provision of access has been paid.

PART 4

EXEMPT RECORDS

Public interest test
For the purposes of this Part, the test of whether disclosure by a public authority

of a record or the existence of a record is in the public interest is whether the public interest
would, on balance, be better served by disclosure than by non-disclosure.

Health or safety of individual
Subject to subsection (2), a record is exempt from disclosure if its disclosure

would, or would be likely to, endanger the physical or mental health or the safety of an
individual.

A record shall be disclosed if disclosure of it is in the public interest.

Personal information
Subject to the provisions of this section, a record that consists of personal

information is exempt from disclosure.

Subsection (1) does not apply if—

subject to subsection (3), the information concerned relates to the
requester;

the individual to whom the information relates consents in writing to its
disclosure;

the information in the record is of the same kind as information that—

is contained in the record in respect of individuals generally, or in
respect of a class of individuals that is of significant size, and

is available to the general public;

the information was given to the public authority concerned by the
individual to whom it relates and the individual was informed on behalf of
the authority, before the information was given, that the information

20 (1)

(2)

(3)

21

22 (1)

(2)

23 (1)

(2)

(a)

(b)

(c)

(i)

(ii)

(d)

13

PUBLIC ACCESS TO INFORMATION ACT 2010

belonged to a class of information that would or might be made available
to the general public; or

disclosure of the information is necessary in order to avoid a serious and
imminent danger to the life or health of an individual.

Where disclosure of the information to the requester might be prejudicial to the
physical or mental health of the requester, a public authority may refuse a request for—

a record of a medical or psychiatric nature relating to the requester; or

a record kept for the purposes of, or obtained in the course of, the carrying
out of social work in relation to the requester.

Where, under subsection (3), a public authority refuses to grant a request, the
authority shall, if requested to do so by the requester, provide access to a record referred
to in that subsection to a health professional, within the meaning of section 2 of the
Bermuda Health Council Act 2004, who has expertise in relation to the subject matter of
the record.

A public authority may grant a request for a record containing personal
information in relation to an individual where the requester concerned is—

the parent or guardian of the individual, if the individual is under the age
of eighteen; or

the executor or administrator of the estate of the individual.

A record that contains personal information relating to an individual shall be
disclosed if disclosure of it is in the public interest or would benefit the individual.

Definition of personal information
Subject to subsection (2), “personal information” means information recorded

in any form about an identifiable individual, including—

information relating to the race, national or ethnic origin, religion, age, sex
or marital status of the individual;

information relating to the education or the medical, criminal or
employment history of the individual or information relating to financial
transactions in which the individual has been involved;

any identifying number or other particular assigned to the individual;

the address, fingerprints or blood type of the individual;

the name of the individual where it appears with other personal
information relating to the individual or where the disclosure of the name
itself would reveal information about the individual;

correspondence sent to a public authority by the individual that is
explicitly or implicitly of a private or confidential nature, and replies to
such correspondence that would reveal the contents of the original
correspondence; or

(e)

(3)

(a)

(b)

(4)

(5)

(a)

(b)

(6)

24 (1)

(a)

(b)

(c)

(d)

(e)

(f)

14

PUBLIC ACCESS TO INFORMATION ACT 2010

the views or opinions of any other person about the individual.

But “personal information” does not include—

information about an individual who is or was an officer or employee of a
public authority that relates to the position or functions of the individual;

information about an individual who is or was performing services under
contract for a public authority that relates to the services performed,
including the terms of the contract and the name of the individual; or

information relating to any discretionary benefit of a financial nature,
including the granting of a licence or permit, conferred on an individual by
a public authority, including the name of the individual and the exact
nature of the benefit.

Commercial information
Subject to subsections (2) and (3), a record that consists of the following

information is exempt from disclosure—

trade secrets of any person;

information, the commercial value of which would be, or could reasonably
be expected to be, destroyed or diminished by disclosure;

information, the disclosure of which would have, or could reasonably be
expected to have, an adverse effect on the commercial interests of any
person to whom the information relates; or

information, the disclosure of which would prejudice, or could reasonably
be expected to prejudice, the conduct or outcome of contractual or other
negotiations of any person to whom the information relates.

Subsection (1) does not apply if—

the information concerned relates to the requester;

the person to whom the information relates consents in writing to its
disclosure; or

the information was given to the public authority concerned by the person
to whom it relates and the person was informed on behalf of the authority,
before the information was given, that the information belonged to a class
of information that would or might be made available to the general public.

A record shall be disclosed if disclosure of it is in the public interest.

Information received in confidence
Subject to subsection (2), a record that consists of the following information is

exempt from disclosure—

information—

(g)

(2)

(a)

(b)

(c)

25 (1)

(a)

(b)

(c)

(d)

(2)

(a)

(b)

(c)

(3)

26 (1)

(a)

15

PUBLIC ACCESS TO INFORMATION ACT 2010

that is given to a public authority by a third party (other than another
public authority) in confidence on the understanding that it would be
treated as confidential, and

the disclosure of which would be likely to prevent the authority from
receiving further similar information required by the authority to
properly fulfil its functions; or

information, the disclosure of which would constitute a breach of a duty of
confidence provided for by a provision of law.

A record shall be disclosed if disclosure of it is in the public interest.

Cabinet documents
Subject to subsections (2) and (3), a record is an exempt record if it is—

a record that has been submitted to the Cabinet for its consideration or is
proposed by a Minister of Government to be so submitted, being a record
that was brought into existence for the purpose of submission for
consideration by the Cabinet;

an official record of any deliberation or decision of the Cabinet;

a record that is a draft or copy of, or an extract from, a record referred to
in paragraph (a) or (b); or

a record, the disclosure of which would involve, or could reasonably be
expected to involve, the disclosure of any deliberation or decision of the
Cabinet, other than a record by which a decision of the Cabinet is officially
published.

Subsection (1) does not apply to a record that contains purely statistical,
technical or scientific material unless the disclosure of the record would involve, or could
reasonably be expected to involve, the disclosure of any deliberation or decision of the
Cabinet.

In this section, “Cabinet” includes any committee of the Cabinet.

Ministerial responsibility
Subject to subsection (2), a record is exempt from disclosure if it consists of

information, the disclosure of which would undermine, or could reasonably be expected to
undermine, individual ministerial responsibility, including free and frank discussion and
advice between Ministers, or between Ministers and public officers, in the course of their
public duties.

A record shall be disclosed if disclosure of it is in the public interest.

Deliberations of public authorities
Subject to subsections (2) and (3), a record is exempt from disclosure if it

consists of information, the disclosure of which would undermine, or could reasonably be

(i)

(ii)

(b)

(2)

27 (1)

(a)

(b)

(c)

(d)

(2)

(3)

28 (1)

(2)

29 (1)

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PUBLIC ACCESS TO INFORMATION ACT 2010

expected to undermine, the deliberative process of a public authority, including free and
frank discussion and provision of advice in the course of that process.

Subsection (1) does not apply to information contained in a record that is—

factual or statistical information;

information resulting from an investigation or analysis of the performance,
efficiency or effectiveness of a public authority in relation to its functions;

information in the nature of a report, study or analysis of a scientific or
technical expert; or

information in the nature of the reasons of a public authority for making
a particular decision.

A record shall be disclosed if disclosure of it is in the public interest.

Operations of public authorities
Subject to subsection (2), a record is exempt if its disclosure could reasonably

be expected to—

prejudice the effectiveness of tests, examinations, investigations, inquiries
or audits conducted by or on behalf of the public authority concerned or
the procedures or methods employed for the conduct of those tests,
examinations, investigations, inquiries or audits;

have a significant, adverse effect on the performance by the public
authority of any of its functions relating to management (including
industrial relations and management of its staff); or

disclose positions taken, or to be taken, or plans, procedures, criteria or
instructions used or followed, or to be used or followed, for the purpose of
any ongoing negotiations by or on behalf of the Government or a public
authority.

A record shall be disclosed if disclosure of it is in the public interest.

Financial and economic interests
Subject to subsection (2), a record is exempt from disclosure if its disclosure,

or premature disclosure, could reasonably be expected to have a serious adverse effect on
the financial interests of Bermuda or on the ability of the Government to manage the
national economy.

A record shall be disclosed if disclosure of it is in the public interest.

National security, defence, and international relations
Subject to subsection (3), a record is exempt from disclosure if—

disclosure of it would prejudice, or could reasonably be expected to
prejudice, the security or defence of Bermuda or relations between
Bermuda and any State or international organization of States; or

(2)

(a)

(b)

(c)

(d)

(3)

30 (1)

(a)

(b)

(c)

(2)

31 (1)

(2)

32 (1)

(a)

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PUBLIC ACCESS TO INFORMATION ACT 2010

the record contains information communicated in confidence by a State or
an international organization of States.

For the purposes of this section “State” includes the United Kingdom and any
overseas territory of the United Kingdom.

A record shall be disclosed if disclosure of it is in the public interest.

Governor’s responsibilities and communications with the United Kingdom
Subject to subsection (2), a record is exempt from disclosure if—

it contains information that relates to the responsibilities of the Governor
under section 62 of the Bermuda Constitution Order 1968, the disclosure
of which would prejudice, or could reasonably be expected to prejudice, the
effective conduct of public affairs; or

it consists of communications between the Office of the Governor and
departments of the Government of the United Kingdom relating to business
of the Office of the Governor, the disclosure of which would prejudice, or
could reasonably be expected to prejudice, the effective conduct of public
affairs.

A record shall be disclosed if disclosure of it is in the public interest.

Law enforcement
Subject to subsection (2), a record is exempt if its disclosure would, or could

reasonably be expected to—

prejudice the prevention, detection or investigation of a breach or possible
breach of the law;

prejudice the enforcement of, compliance with, or administration of, any
law;

prejudice the fair trial of a person or the impartial adjudication of a
particular case;

disclose, or enable a person to ascertain, the existence or identity of a
confidential source of information in relation to the enforcement or
administration of the law;

disclose methods or procedures for preventing, detecting, investigating, or
dealing with matters arising out of breaches or evasions of the law, the
disclosure of which would prejudice, or could reasonably be expected to
prejudice, the effectiveness of those methods or procedures;

endanger any person’s life or safety;

prejudice the security of any building, structure, vehicle, ship, boat or
aircraft; or

facilitate the commission of an offence.

(b)

(2)

(3)

33 (1)

(a)

(b)

(2)

34 (1)

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

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PUBLIC ACCESS TO INFORMATION ACT 2010

Subsection (1) does not apply to a record if—

it consists of—

information revealing that the scope of a law enforcement investigation
is not authorized by law, or has exceeded the limits imposed by law,

a general outline of the structure of a program adopted by an agency
for dealing with a contravention or possible contravention of the law,

a report on the degree of success achieved in a program adopted by a
public authority for dealing with any contravention or possible
contravention of the law,

a report prepared in the course of a routine law enforcement inspection
or investigation by a public authority whose functions include that of
enforcing the law, or

a report on a law enforcement investigation that has already been
disclosed to the person or body that is the subject of the investigation;
and

its disclosure would be in the public interest.

Legal professional privilege
Subject to subsection (2), a record is exempt if it is of such a nature that it

would be exempt from production in legal proceedings on the ground of legal professional
privilege.

A record shall be disclosed if disclosure of it is in the public interest.

Contempt of court and parliamentary privilege
A record is exempt if its disclosure would, or could reasonably be expected to be—

in contempt of court or contrary to an order made by a court, tribunal or
other judicial body; or

an infringement of parliamentary privilege.

Disclosure prohibited by other legislation
A record is exempt if its disclosure is prohibited by any statutory provision,

other than this Act.

The Minister may by order repeal, revoke or amend any statutory provision
referred to in subsection (1).

An order under subsection (2) may make any modifications that are
consequential upon or incidental to the repeal, revocation or amendment of the relevant
statutory provision, and an order may contain any transitional provisions and savings that
are appropriate.

An order under subsection (2) is subject to the affirmative resolution procedure.

(2)

(a)

(i)

(ii)

(iii)

(iv)

(v)

(b)

35 (1)

(2)

36

(a)

(b)

37 (1)

(2)

(3)

(4)

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PUBLIC ACCESS TO INFORMATION ACT 2010

Where a statutory provision made after the coming into operation of this section
prohibits the disclosure of a record, the provision shall not have effect unless it provides
specifically that it is to have effect notwithstanding this Act.

Non-disclosure of existence of a record
A public authority may refuse to disclose whether a record exists if the record

itself, if it exists or were to exist, is or would be an exempt record.

The existence or non-existence of a record shall be disclosed if disclosure of it
is in the public interest.

Notice to third parties
If a public authority intends to disclose a record that the head of the public

authority has reason to believe might contain information of a type referred to in section
23, 25 or 26, the head of the public authority shall give notice to any third party who gave
the information to the authority, or to whom the information relates—

A notice under subsection (1) to a third party shall—

state that the authority intends to disclose a record that might contain
information of a type referred to in section 23, 25 or 26 that was given to
the authority by the third party or that relates to the third party, as the
case may be;

describe the contents of the record; and

state that, within fourteen days after the notice is given, the third party
may consent in writing to the disclosure of the record or make written
representations to the authority with regard to the intended disclosure.

The public authority shall give a copy of any notice given under this section to
the requester.

The public authority shall consider any representations made by a third party
pursuant to a notice under this section before making a decision under section 14 whether
to grant or refuse to grant a request for access to a record referred to in this section.

Expiry of certain exemptions
Subject to subsection (2), a record shall not be exempt under this Part after the

expiry of 30 years from the date when the record was created.

Subsection (1) does not apply to a record that is exempt from disclosure under
section 23 or 37.

(5)

38 (1)

(2)

39 (1)

(2)

(a)

(b)

(c)

(3)

(4)

40 (1)

(2)

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PUBLIC ACCESS TO INFORMATION ACT 2010

PART 5

INTERNAL REVIEW

Internal review by authority
A requester or a third party may apply in writing to a public authority for a review

by the authority (in this Part referred to as an “internal review”) of any decision made by
the authority with respect to a request made under Part 3 or of any failure by the authority
to take any action that it is required to take under this Act in respect of such request,
including—

a decision to grant or refuse to grant access to a record;

a decision as to the manner in which access to a record requested is to be
provided;

a decision to transfer a request to another authority, in whole or in part;

a decision to extend the time limit for compliance with a request;

a decision as to the fee charged for access to a record;

a decision to refuse a request to amend a record in respect of personal
information;

a decision to refuse to disclose the existence of a record; and

a failure to do anything relating to a request within the time required by
this Act.

Time limit to apply for internal review
In the case of a decision by a public authority referred to in section 41, an

application for an internal review must be made within 28 days after the date when the
requester or third party, as the case may be, is notified of the decision.

In the case of failure by a public authority to take any action with regard to a
request made under Part 3 within the time limits required by this Act, an application for
internal review must be made within 28 days after the date when the authority was required
to take such action.

A public authority may in its discretion extend the period for making an
application for internal review.

Conduct of review
An internal review of a decision by a public authority, other than a decision

made by the head of a public authority, shall be conducted by the head of the public
authority concerned.

The head of the public authority shall within 21 days after receiving an
application for an internal review with respect to a request—

complete the review and make a decision with regard to the review; and

41

(a)

(b)

(c)

(d)

(e)

(f)

(g)

(h)

42 (1)

(2)

(3)

43 (1)

(2)

(a)

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PUBLIC ACCESS TO INFORMATION ACT 2010

notify the requester and any third party concerned of—

the decision and the reasons for the decision; and

the right of the requester or third party, as the case may be, to apply to
the Commissioner for a review of the decision under Part 6.

Referral to Commissioner
Where an application to a public authority for internal review is for review of a

decision made by the head of the public authority, the public authority shall refer the
application to the Commissioner.

Where an application for an internal review is referred to the Commissioner, it
shall be treated as an application for a review under Part 6 and dealt with accordingly.

The public authority concerned shall, within five working days after receiving
an application under this section, notify the person who made the application that the
application—

has been referred to the Commissioner under this section; and

is to be treated as an application under Part 6.

PART 6

REVIEW BY INFORMATION COMMISSIONER

Application for review
Subject to subsection (2), a requester or a third party may apply in writing to

the Commissioner for a review, as the case may be, of—

any decision made by the head of a public authority under section 43,
within 28 days after being notified of that decision; or

any failure by the head of a public authority to make a decision under
section 43, within 28 days after the date when the decision was required
to be made.

The Commissioner may in his discretion extend the period for a person to apply
for a review under this Part.

Mediation
The Commissioner may at any time attempt to have the matter that is the

subject of an application for review resolved by negotiation, conciliation, mediation or
otherwise.

The Commissioner may authorize any person appointed or engaged under
section 52 to act as a mediator in any mediation.

Participation in the mediation is voluntary and any party to it may withdraw at
any time.

(b)

(i)

(ii)

44 (1)

(2)

(3)

(a)

(b)

45 (1)

(a)

(b)

(2)

46 (1)

(2)

(3)

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PUBLIC ACCESS TO INFORMATION ACT 2010

The mediator may decide to terminate the mediation at any time, in which case
the mediator shall provide reasons for so deciding.

Anything said or admitted during the mediation and any document prepared
for the purposes of the mediation shall not be admissible in evidence against any person in
any subsequent proceedings concerning a matter that is the subject of the mediation and
no evidence in respect of the mediation may be given against any person.

Review
If the Commissioner decides not to attempt to resolve the matter under section

46 or if any such attempt is not successful, the Commissioner shall commence a review of
the matter.

Subject to this Act, the Commissioner may determine the procedure to be
followed in the conduct of a review under this Part.

Every review shall be conducted in private.

The Commissioner shall give a reasonable opportunity for the requester, the
public authority and any third party concerned to make representations.

Unless permitted by the Commissioner, no person has a right to be present
during representations made to the Commissioner by another person, or the right to have
access to, or to comment on, representations made by another person.

The Commissioner shall, as soon as practicable—

complete the review and make a decision with regard to the review; and

notify the requester, the public authority and any third party concerned of
the Commissioner’s decision and the reasons for that decision.

Decision by Commissioner
The Commissioner may make a decision to—

affirm, vary or reverse the decision of a public authority that is the subject
of review by the Commissioner; or

make such other order, in accordance with this Act, as the Commissioner
considers appropriate.

A decision of the Commissioner shall, where appropriate, specify the period
within which effect shall be given to the decision.

Subject to section 49, a decision of the Commissioner is binding on all persons
affected by it and, upon the decision being filed with the Registrar of the Supreme Court, it
shall have the effect of an order of the Supreme Court and shall be enforceable in the same
manner as an order of the court.

Judicial review
Any person (including any public authority) aggrieved by a decision of the

Commissioner under this Act may apply to the Supreme Court for a review of the decision

(4)

(5)

47 (1)

(2)

(3)

(4)

(5)

(6)

(a)

(b)

48 (1)

(a)

(b)

(2)

(3)

49 (1)

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PUBLIC ACCESS TO INFORMATION ACT 2010

and the Court, after considering the application, may confirm, vary, remit or set aside the
decision.

An application under subsection (1) for judicial review shall be heard and
determined by a judge in chambers unless the Court, with the consent of the parties, directs
otherwise.

PART 7

OFFICE OF INFORMATION COMMISSIONER

Establishment and appointment
The Office of Information Commissioner is established as a public office.

The Information Commissioner shall be appointed by the Governor after
consultation with the Premier, who shall first have consulted the Opposition Leader.

The Commissioner shall be appointed for a period of five years and may be re-
appointed for a further period of five years.

In the exercise of his functions, the Commissioner shall not be subject to the
direction or control of any other person or authority.

Subject to such exceptions as the Governor acting in his discretion may
authorize in writing, the Commissioner shall not hold any office of profit other than that of
Commissioner or otherwise engage in any occupation for reward outside the duties of the
Office of Information Commissioner.

Mandate of Commissioner
The mandate of the Commissioner is to promote public access to information

in accordance with this Act, including by raising public awareness and understanding of
the rights conferred by the Act and by providing guidance to public authorities with regard
to the obligations imposed on them by the Act.

The Commissioner shall perform the functions assigned to him by this Act and
by any other statutory provision.

Staff
There shall be appointed to assist the Commissioner in the discharge of his

functions such number of public officers as may be required.

The Commissioner may, in addition, engage from time to time such technical
or professional advisers as the Commissioner considers necessary to assist in the discharge
of his functions under this Act.

Every person appointed or engaged under this section is subject to the
Commissioner’s direction and control in the performance of functions under this Act.

(2)

50 (1)

(2)

(3)

(4)

(5)

51 (1)

(2)

52 (1)

(2)

(3)

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PUBLIC ACCESS TO INFORMATION ACT 2010

Obligation to maintain secrecy
The Commissioner and every person appointed or engaged under section 52

shall maintain secrecy in respect of all matters that come to their knowledge in the exercise
of their functions and shall not communicate any such matter to any person except for the
purpose of carrying out their functions under this Act.

Information or documents obtained by the Commissioner or any person
appointed or engaged under section 52 in the exercise of their functions shall not be
disclosed except for the purpose of this Act.

Privilege
No proceedings, civil or criminal, shall be brought against the Commissioner

or any person appointed or engaged under section 52 in respect of anything done or omitted
to be done in the performance or intended performance of their functions under this Act
unless it is shown that the Commissioner or person acted in bad faith.

Neither the Commissioner nor any person appointed or engaged under section
52 shall be called to give evidence in any court, or in any proceedings of a judicial nature,
in respect of anything coming to their knowledge in the exercise of their functions under
this Act.

Funding for Office and accounting
All salaries, allowances and other expenditure payable or incurred under this

Act in respect of the Office of Commissioner, shall be payable out of money appropriated by
the Legislature for that purpose.

The Commissioner is designated as controlling officer in respect of estimates of
expenditure approved in relation to the office of Commissioner.

The Commissioner shall cause proper accounts to be kept and maintained of
all the financial transactions with respect to the Office of Commissioner and shall prepare
in respect of each financial year, a statement of such accounts in such form as the
Accountant General may direct.

The accounts of the Office of Commissioner shall be audited and reported on
annually by the Auditor General, and for that purpose the Auditor General or any person
authorized by him in that behalf shall have access to all books, records, returns and other
documents relating to such accounts.

Powers of Commissioner
In conducting a review, the Commissioner has power—

to summon and enforce the appearance of persons before the
Commissioner and compel them to give oral or written evidence on oath or
affirmation, and to produce such documents and things as the
Commissioner deems requisite to conduct the review, in the same manner
and to the same extent as a judge of the Supreme Court;

to administer oaths and affirmations;

53 (1)

(2)

54 (1)

(2)

55 (1)

(2)

(3)

(4)

56 (1)

(a)

(b)

25

PUBLIC ACCESS TO INFORMATION ACT 2010

to receive and accept such evidence and other information, whether on
oath or by affidavit or otherwise, as the Commissioner sees fit, whether or
not the evidence or information is or would be admissible in a court of law;

to enter any premises occupied by any public authority on satisfying any
security requirements of the authority relating to the premises;

to converse in private with any person in any premises entered pursuant
to paragraph (d) and otherwise carry out therein such inquiries authorized
under this Act as the Commissioner sees fit; and

to examine or obtain copies of or extracts from books or other records found
in any premises entered pursuant to paragraph (d) containing any matter
relevant to the investigation.

Notwithstanding any other Act or any privilege under the law of evidence, the
Commissioner may, during the conduct of a review under this Act, examine any record to
which this Act applies that is under the control of a public authority, and no such record
may be withheld from the Commissioner on any grounds.

Any document or thing produced to the Commissioner under this section by
any person or public authority shall be returned by the Commissioner within ten days after
a request is made by that person or authority for its return; but nothing in this subsection
precludes the Commissioner from again requiring its production in accordance with this
section.

A person who fails or refuses to comply with a requirement under this section
or who hinders or obstructs the Commissioner in the performance of his functions under
this section is guilty of an offence and is liable on summary conviction to a fine not exceeding
$5,000 or to imprisonment for a term not exceeding 6 months or both.

Review and investigations by Commissioner
The Commissioner shall keep the operation of this Act under review and shall,

not later than two years after this section comes into operation, carry out an investigation
into practices and procedures adopted by public authorities generally for the purposes of
compliance with the provisions of this Act.

The Commissioner shall prepare a written report on the investigation under
subsection (1) and provide a copy of the report to the Minister.

The Commissioner may at any time carry out other investigations into the
practices and procedures adopted by public authorities generally or any particular public
authority for the purposes of compliance with the provisions of this Act.

The Commissioner may prepare a report, in writing or such other form as may
be determined, of his findings and conclusions resulting from the carrying out of an
investigation under subsection (3).

The Commissioner shall cause a copy of any report under this section—

to be provided to the Minister and to any public authority concerned and;

(c)

(d)

(e)

(f)

(2)

(3)

(4)

57 (1)

(2)

(3)

(4)

(5)

(a)

26

PUBLIC ACCESS TO INFORMATION ACT 2010

to be appended to the Commissioner’s annual report under section 58.

Annual report by Commissioner
The Commissioner shall, within three months after the end of each calendar

year, prepare a report on the operation of this Act during that year and cause copies of the
report to be laid before each House of the Legislature.

The report shall include the following information—

the number of requests made under section 13 for access to records and
how they were disposed of;

the number of requests made under section 19 to amend records of
personal information and how they were disposed of;

the number of times that exemptions under Part 4 were invoked by public
authorities, by category;

the number of applications made for internal review under Part 5 and how
they were disposed of;

the number of applications for review by the Commissioner under part 6
and how they were disposed of; and

the number of applications made under section 49 for judicial review and
the status or result of such applications.

Every public authority shall, before the end of each calendar year, provide a
written report to the Commissioner containing the information set out in subsection (2) as
it pertains to that public authority.

PART 8

MISCELLANEOUS

Regulations
The Minister may make regulations—

prescribing fees payable for the provision of access to records under this
Act, including the manner of calculating fees, circumstances in which no
fee is payable and the maximum fee that may be charged;

amending the Schedule by the addition, modification or deletion of the
name of any public authority or head of a public authority;

providing for the management and maintenance of records held by public
authorities; and

generally for carrying out the purposes and provisions of this Act.

The affirmative resolution procedure applies to regulations made under this
section.

(b)

58 (1)

(2)

(a)

(b)

(c)

(d)

(e)

(f)

(3)

59 (1)

(a)

(b)

(c)

(d)

(2)

27

PUBLIC ACCESS TO INFORMATION ACT 2010

Codes of practice
The Minister shall, following consultation with the Commissioner, establish

codes of practice for public authorities regarding the administration of this Act.

The Minister shall, in consultation with the Commissioner and the Archivist,
establish codes of practice for public authorities regarding the maintenance and
management of records of public authorities in a manner that facilitates ready access to
the records.

A code of practice established under subsection (1) or (2) is not a statutory
instrument for the purposes of the Statutory Instruments Act 1977.

Training and organization
The Minister shall ensure that appropriate measures are taken by public

authorities with regard to training of staff, organizational arrangements and any other
matters that the Minister considers appropriate, for the purposes of facilitating compliance
with this Act.

Information officer
Every public authority shall designate one of its officers to be the person to whom

requests under the Act may be directed.

Protection against liability
No proceedings, civil or criminal, shall be brought against any public authority, its

employees or agents in respect of the disclosure or non-disclosure by any of them of any
record under this Act, or any action taken or omitted to be taken under this Act, unless it
is shown that the authority, employee or agent acted in bad faith.

Offence to alter or destroy record
Any person who alters, erases, destroys or conceals any record with the intention

of preventing its disclosure under this Act commits an offence and is liable on summary
conviction to a fine of $10,000 or to imprisonment for 6 months or to both such fine and
imprisonment.

General offence
Any person who knowingly contravenes any provision of this Act or regulations

made under this Act (other than section 56 or 64) is guilty of an offence and is liable on
summary conviction to a fine of $5,000 or to imprisonment for 6 months or to both such
fine and imprisonment.

Commencement
This Act comes into operation on a day to be appointed by the Minister by notice

published in the Gazette.

The Minister may appoint different days for different provisions of the Act.

60 (1)

(2)

(3)

61

62

63

64

65

66 (1)

(2)

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PUBLIC ACCESS TO INFORMATION ACT 2010

SCHEDULE

(Section 3(1))

Column 1 Column 2
Public Authority Head of Public Authority
1. The Office of the Governor The Governor
2. The Cabinet Office The Secretary to the Cabinet
3. The Public Service Commission The Head of the Civil Service
4. The Bermuda Police Service The Commissioner of Police
5. The Bermuda Regiment The Commanding Officer
6. The Office of the Clerk of the Legislature The Clerk of the Legislature
7. The Department of Public Prosecutions The Director of Public Prosecutions
8. The Office of the Auditor General The Auditor General
9. The Office of the Ombudsman The Ombudsman
10. The Human Rights Commission The Chairman
11. The Office of Information Commissioner The Information Commissioner
12. Every department of the Government The Permanent Secretary who has

supervision of the department
13. Every entity that is established by
statutory provision and carries out functions
of a governmental or quasi-governmental
nature

The chairperson of the entity, or, where there
is no chairperson, the person who fulfils the
role of chief executive officer of the entity

14. Every entity that is owned or controlled
by the Government or that is substantially
funded by monies authorized by the
Legislature

The chairperson of the entity, or, where there
is no chairperson, the person who fulfils the
role of chief executive officer of the entity

15. The Corporation of Hamilton The Mayor of the City of Hamilton
16. The Corporation of St. George’s The Mayor of the Town of St. George
17. Every parish council under the Parish
Councils Act 1971

The Chairman of the parish council

[Assent Date: 10 August 2010]

[Operative Date: 01 April 2015]

29