The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Save the Bays activist group yesterday informed the data protection watchdog it will submit a formal complaint over the leaking of its private e-mails, once its own investigation and legal analysis is completed.

Ferron Bethell, the attorney acting for the Save the Bays plaintiffs, branded the leak as “one of the most significant Bahamian data breaches in recent times” in his March 30 letter to Sharmie Farrington-Austin.

Expressing appreciation for the Data Protection Commissioner’s call for any formal complaints to be submitted to her office, Mr Bethell said he and his clients were working to identify the source of the disclosures.

And he hinted that Save the Bays, and its legal team, were also assessing whether the disclosures by two Cabinet ministers and an MP enjoyed blanket protection from Parliamentary privilege.

Fred Smith QC, Save the Bays’ legal director and one of the plaintiffs in the ‘e-mail’ leak action, subsequently confirmed to Tribune Business that they were indeed exploring whether ‘Parliamentary privilege’ granted MPs immunity from “unconstitutional” actions.

Suggesting that there was legal precedent for such a position, Mr Smith confirmed that he and his fellow plaintiffs would submit a formal complaint to the Data Protection Commissioner once their own probe was finished.

Mr Bethell told Mrs Farrington-Austin: “We appreciate the invitation for representations on this serious issue, which appears to form one of the most significant Bahamian data breaches in recent times.

“Our clients are the victims of an unauthorised leak, whereby private e-mails and documents containing financial information have been processed and disclosed without their consent, and notwithstanding the existence of confidentiality agreements.”

The Harry B. Sands, Lobosky & Company partner added that the Supreme Court injunction obtained by his clients on March 18, within 24 hours of the House of Assembly disclosures, appeared to have succeeded in “stopping the drip-feed of personal information”.

“We have now turned our focus to taking steps to identify [the source of the leaks],” Mr Bethell told the Data Protection Commissioner, adding that they were also reviewing reports from the House of Assembly sessions where the disclosures were made.

“As soon as these steps have been completed, we shall update you and anticipate seeking your assistance in relation to the unauthorised disclosure of personal data,” Mr Bethell wrote.

“At this stage, whilst we note your initial stance, we must reserve our clients’ position in relation to the applicability of Parliamentary privilege.”

Mrs Farrington-Austin, in wading into the controversy surrounding the Save the Bays e-mail disclosures, warned MPs against tabling private correspondence in Parliament.

She described it as “a dangerous trend” that will lead to “society chaos”, and told MPs that Bahamians expected them to be held to the same standards as ordinary citizens.

However, Mrs Farrington-Austin swiftly acknowledged that ‘Parliamentary privilege’ - which covers all House of Assembly proceedings - meant the Save the Bays e-mail disclosures had not breached the Data Protection Act or any other laws safeguarding privacy and personal information.

The Data Protection Act’s Section 5 explicitly excludes the “deliberations” of Parliament and its committees from its remit, effectively rendering the Data Protection Commissioner ‘impotent’ and unable to take action against the three MPs responsible for the disclosures.

Mr Smith, though, questioned whether Parliamentary privilege and the Act’s section five “restriction” applied when constitutional rights, such as privacy, were breached.

“I am very pleased that the Data Protection Commissioner has expressed concern about this kind of invasion of privacy, and the attention being drawn to this kind of behaviour in Parliament will help to expose irresponsibility in Government,” Mr Smith told Tribune Business.

“I am not satisfied that Parliamentary privilege gives a blanket protection from abuse of constitutional rights. The right to privacy has been adjudicated upon in the Bahamas in a judgment by Justice Hall, argued by Henry Bostwick QC, many years ago.

“It may very well be that Parliamentary privilege and the restriction contained in the Data Protection Act regarding the use of material in Parliament may be unconstitutional, and we are looking into that,” he added.

“The rule of law in the Bahamas must prevail, not the use of brute force, even in Parliament.”

The Save the Bays’ controversy was sparked after its confidential financial affairs and e-mails were read out in Parliament.

Cabinet ministers, Jerome Fitzgerald and Fred Mitchell, and Water & Sewerage Corporation chairman, Leslie Miller, all disclosed the private information under the protection of Parliamentary privilege.

Mr Smith, together with fellow plaintiffs, the Coalition to Protect Clifton Bay environmental group, and Zack Bacon, brother of hedge fund billionaire, Louis Bacon, subsequently obtained a Supreme Court injunction to prevent further disclosure of the documents obtained by the three MPs.

The battle over the ‘e-mail leak’ continued to rumble on yesterday, as the various parties traded allegations and counter-allegations of hypocrisy.

Bradley Roberts, the PLP chairman, defended Mr Fitzgerald and pointed to the contrast between Save the Bays’ Freedom of Information Act demands and its injunction, which he claimed was intended to bar “the public’s right to know”.

Mr Roberts argued that politicians from all sides and the media frequently breached confidentiality laws by publishing leaked information, and said: “This ‘fake’ furore over this e-mail revelation is a demonstration of hypocrisy and duplicity in its worst form, as these actions strike at the credibility of the usual suspects.

“The usual suspects cannot have it both ways and change the rules of the game - in the middle of the game - when the national narrative becomes an inconvenient truth to them.”

Save the Bays, for its part, referred Tribune Business to a newspaper article that showed Mr Fitzgerald touting the Data Protection Act’s benefits, and the need to “protect people’s fundamental rights’, less than five months ago.

The November 18, 2015, article in The Tribune quoted an address Mr Fitzgerald gave at the National Data Protection Symposium.

The Minister said the lines between an individual’s public persona, and their personal life, are often “blurred”.

“Given our culture, there is sometimes a misunderstanding of what should and shouldn’t be allowed to enter the public domain. Many people often lament the fact that confidentiality seems to be non-existent regarding certain individuals and circumstances,” Mr Fitzgerald said.

“The Data Protection Act will ensure the protection of personal data. It is designed to protect people’s fundamental rights and freedoms and in particular their right to privacy with respect to the processing and access of personal data.”