DATA COMMISSIONER: 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….

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Yinner think the DATA COMMISSIONER is working for Save Da Bays Too? Say She Cautioning Parliament! WELL WHAT DA HELL!

The Data Protection Commissioner Sharmie Farrington-Austin has some words for Parliament?
The Data Protection Commissioner Sharmie Farrington-Austin has some words for Parliament?

Statement by Data Commissioner over Emails on Save da Bays

I return from vacation to duty to respond briefly to several complaints and inquiries lodged in my Office regarding the recent tabling of private emails in the House of Assembly.

I hereby make the following preliminary observations:

PARLIAMENTARY PRIVILEGE/EXCLUSION

Documents tabled in House of Assembly enjoy Parliamentary Privilege.

Section 5 of the Data Protection Privacy of Personal Information Act states in part: … (d) deliberations of Parliament and Parliamentary committees;…are excluded.

Therefore, the Data Protection Commissioner is not the appropriate authority to make any rulings/comments with respect to the admissibility of correspondence in the House of Assembly.

Certainly, if actionable, the issue as to whether personal emails can legitimately be determined as a part of the deliberations (proceedings) of the Parliament ought to be properly determined by a competent Court of Law.

NATIONAL SECURITY

Certain aspects of this case appear to have national security implications.Section 5 of the Data Protection Privacy of Personal Information Act, 2003 provides in part:

“ that in the opinion of the Minister or the Minister for National Security are, or at any time were, kept for the purpose of safeguarding the security of The Bahamas.”Thus, the Data Protection Commissioner is excluded.

Also, Section 13 of the Act outlines where the disclosure of personal information is permitted in certain circumstances. Specifically, section 13 and 13(a) states in part:“In this Act any restrictions on or exceptions to the disclosure of personal data do not apply if the disclosure is —

(a) in the opinion of the Minister or the Minister of National Security required for the purpose of safeguarding the security of The Bahamas;…”

CIVIL PROCEEDINGS

Section 5 (e) cited below excludes personal data in civil proceedings .“…e) pending civil, criminal or international legal assistance procedures…”Certainly, there are ongoing civil procedures.

CRIMINAL INVESTIGATIONS

It should be noted that there are ongoing criminal investigations by the Royal Bahamas Police Force into these matters. This Office as is always the case, lends support to other Enforcement Agencies to ensure that the best interest of our country is served.I join the Commissioner of Police in saying that I would seek to limit my comments in the public domain. Primarily, because the investigations involve matters of a very sensitive nature that can negatively impact our country. The Data Protection Commissioner always has to give regard to the balancing act.

DATA PROTECTION ISSUES

The relevant data protection issue in this matter concerns whether person(s) gained unauthorized access to the said private emails before they were tabled in the House of Assembly.

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

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

Notwithstanding this, in accordance with section 15 of the Data Protection Privacy of Personal information Act, 2003 and as a matter of public interest, the public’s attention is drawn to the following provisions contained within the said Act.Sections 22 and 23

The above sections states in part:

“22. Personal data processed by a data processor shall not be disclosed by him, or by an employee or agent of his, without the prior authority of the data controller on behalf of whom the data are processed.

(2) A person who knowingly contravenes subsection (1) shall be guilty of an offence.23. (1) A person who —

(a) obtains access to personal data, or obtains any information constituting such data, without the prior authority of the data controller or data processor by whom the data are kept; and

(b) discloses the data or information to another person, shall be guilty of an offence.”I have confidence that the Commissioner of Police and his team would have put the relevant and necessary questions to the parties and is conducting its investigation as to how the said information was obtained.

I have every hope that the Commissioner of Police will share that information with the Data Protection Commissioner where permitted.

PRIVATE CORRESPONDENCE WITHIN THE PUBLIC DOMAIN

The Commissioner notes that there are several statements within the public domain outside of what has been tabled in the Parliament.

The Commissioner would have jurisdiction in respect to these matters if they involve the unauthorized disclosure of personal information.

In seeking to deal with such matters, this Office is also mindful of international best practices and other conventions that are likely to impact the matter before us for persuasive value.

It is important to note that it appears that none of the statements within the public domain contains the said emails. I stand to be corrected.

PUBLIC TRUST

It is my considered view that members of Parliament ought to be cognizant of the fact that members of the public expect that their members of Parliament 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.

CONCLUSION

To be clear, ALL persons found in breach of sections 22 and 23 provided that the prosecution can be made minus evidence that was tabled in House of Assembly is open to prosecution.

I take this opportunity to invite all parties concerned to make any representations they might have to this Office.

We will await the conclusions of the Police Investigations and will make further determinations once the matter has been concluded.

Finally, we also re-issue our statement previously released on “Unauthorised Leaks.” It is our duty to serve where permitted.