The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Data Protection Commissioner has warned MPs against tabling private correspondence in Parliament, describing it as “a dangerous trend” that will lead to “society chaos”.

Sharmie Farrington-Austin, in wading into the controversy surrounding the disclosure of private e-mails belonging to the Save the Bays activist group, warned MPs that Bahamians expected them to be held to the same standards as ordinary citizens.

However, she 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.

Nevertheless, Mrs Farrington-Austin warned: “It is my considered view that members of Parliament ought to be cognisant of the fact that members of the public expect that their MPs will be held to the same standard as ordinary citizens in relation to the commission of a criminal offence. No citizen should be above the law.

“This Office cautions against the practice of obtaining private citizens’ correspondence and tabling them in the House of Assembly. This, in my view, is a most dangerous trend and opens up the society to chaos.

“Citizens have a right to expect that their private communications would enjoy the protection afforded them under the laws of the country.”

Mrs Farrington-Austin’s statement appears to be a ‘shot across the bows’ of MPs, and an attempt to warn them of the consequences should they seek to use (some would say ‘abuse’) ‘Parliamentary privilege’ as cover for the release of private e-mails and other correspondence.

One of the concerns likely uppermost in her mind is that the Bahamian public could interpret their MPs’ actions as ‘a green light’ to do similar - resulting in them breaching the Data Protection Act and other laws.

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.

Fred Smith QC, Save the Bays’ legal director, 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.

Mr Miller, during his mid-year Budget debate contribution, read out in the House of Assembly the alleged salaries being paid to Save the Bays members, which ranged from $90,000 to $250,000 per year.

Lakeisha Strachan, an attorney with the plaintiffs’ attorneys, Harry B Sands, Lobosky & Company, alleged in a March 18 affidavit that it was “clear” Mr Miller had seen a confidential document that “only a handful of people would have been legitimately privy to”.

The following day, Mr Mitchell, minister of foreign affairs and immigration, accused Louis Bacon of spending millions of dollars to “destabilise” the Christie administration.

Mr Fitzgerald, the minister of education, science and technology, then read out a private e-mail exchange between Save the Bays members and attorneys that was discussing a planned advertisement the group was preparing to take out.

“As with the financial records, only a handful of people would have had access to the above e-mail chain, and nobody was entitled to make it public,” Ms Strachan alleged.

“It is apparent, therefore, that there has been a leak of confidential and/or private documents relating to Save the Bays and its directors.”

Mr Smith, though, has conceded that Save the Bays does not know the source of the e-mail “leak”, and whether they were obtained through computer hacking or some other means.

Mrs Farrington-Austin, in saying she was responding to “several complaints and inquiries lodged” with her office over the Save the Bays controversy, added that no evidence had been provided to help any investigation.

“It is noteworthy that not one of the complainants provided this Office with any evidence to assist this office in its investigations,” she added.

“Most importantly, none of the parties allegedly affected have made any direct complaint to the Office of The Data Protection Commissioner.”

Mrs Farrington-Austin invited all impacted parties to make submissions to her office, and added that she would await the outcome of a Royal Bahamas Police Force investigation.

The two Cabinet ministers responsible for the Save the Bays disclosures yesterday described Mrs Farrington-Austin’s intervention as “curious”, given that no formal complaint had been submitted to her office.

Messrs Fitzgerald and Mitchell, in a joint statement released by Bahamas Information Services (BIS), remained unrepentant over their actions and sought to deflect attention from the ‘e-mail leak’ issue.

Instead, they suggested the core issue was Save the Bays’ role as a political agent designed to “destabilise” the Bahamian government, backed by foreign money supplied by Mr Bacon.

“As we said in Parliament, this matter is about a well-funded environmental organisation that is not about the environment,” Messrs Fitzgerald and Mitchell said.

“Save The Bays is about politics and destabilising the Government of the Bahamas, and has spent millions of dollars to do so. Let’s not be distracted from that salient fact.

“We remain focused on keeping Save the Bays honest and transparent, and will do so in any forum we deem necessary.”

Other observers, though, have suggested that the ‘destabilisation’ and ‘foreign money’ allegations are themselves an effort by the Government to distract from the latest claims in the ongoing controversy surrounding the Bacon/Peter Nygard battle, and their acceptance of multi-million dollar campaign funding from the latter.

Still, Messrs Fitzgerald and Mitchell added: “The Data Protection Commissioner herself recognises that the Act has no jurisdiction with regard to statements and documents laid in Parliament.

“We agree. Let the public be assured that neither of us is a party to any ‘unauthorised’ access to e-mails.

“It is ironic that the same people who were fighting for Freedom of Information and transparency are now running to court to stop the same freedom they were supposedly fighting for. What a difference a day makes. A bunch of self-righteous hypocrites.”