The attorney representing Zack Bacon, the brother of billionaire hedge fund manager Louis Bacon, and Fred Smith, QC, wrote Data Protection Commissioner Sharmie Farrington-Austin yesterday advising that his firm is conducting an examination of the "unauthorized disclosure" of their clients' personal emails.
It is the latest development in the controversy that has erupted over the controversial decision by Minister of Education, Science and Technology Jerome Fitzgerald to read an email thread of Save The Bays members in the House of Assembly on March 17.
Fitzgerald has stuck by his decision to do so and has threatened to make more disclosures which he views as evidence that Save The Bays is really a political group disguised as an environmental group.
Notwithstanding denials by Louis Bacon, Save The Bays Chairman Joseph Darville and others, the minister has insisted the purpose of the organization is to destabilize the Christie administration.
In his letter to the data commissioner, Ferron J. M. Bethell, of Harry B. Sands, Lobosky & Company, said their clients "are the victims of an unauthorized leak whereby private emails and documents containing financial information have been processed and disclosed without their consent, and notwithstanding the existence of confidentiality agreements".
The letter continues, "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."
Bethell noted that their clients obtained an emergency injunction on March 18 against, "the person or persons unknown who has or have appropriated, obtained and/or offered or intend to offer for sale and/or publication documents belonging to or relating to Zack Bacon, Frederick Smith QC and/or the environmental organization known as Save The Bays and/or its directors".
The letter says the injunction appears to have been successful to date in stopping "the drip feed of personal information".
"We have now turned our focus to taking steps to identify persons unknown," the letter says. "We are also obtaining reports from the parliamentary sessions at which our clients' personal data was discussed and reviewing any disclosures made outside of such proceedings.
"As soon as these steps have been completed, we shall update you and anticipate seeking your assistance in relation to the unauthorized disclosure of personal data. At this stage, whilst we note your initial stance, we must reserve our clients' position in relation to the applicability of parliamentary privilege."
The data commissioner has noted that she has no jurisdiction over Parliament. The Supreme Court also has no jurisdiction over speech in Parliament.
Background
The letter sent to Farrington-Austin yesterday seemed to be in response to her indication over the holiday weekend that her office had received no formal complaint on this matter.
In her statement, the data commissioner said the tabling of private correspondence in the House of Assembly is a "dangerous trend and opens the society up to chaos". She cautioned public officials against tabling private documents in Parliament and added that certain aspects of the case appear to have national security implications.
"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 offense," Farrington-Austin said.
"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."
Responding to the data commissioner, Fitzgerald and Fox Hill MP Fred Mitchell said on Monday, "... this matter is about a well-funded environmental organization that is not about the environment, but Save The Bays is about politics and destabilizing the government of The Bahamas and has spent millions of dollars to do so.
"... Let the public be assured that neither of us is a party to any unauthorized access to emails."
Speaking to reporters on Tuesday, Fitzgerald said he got the information out of his "political garbage can". He previously told the House of Assembly that he intended to read more emails but was asked by police to turn those emails over to investigators who are probing claims made by Louis Bacon and several people affiliated with Save The Bays that Lyford Cay resident Peter Nygard and attorney Keod Smith plotted to have them murdered.
According to one of the emails Fitzgerald read into the record of the House, Zack Bacon wrote that Commissioner of Police Ellison Greenslade is "deeply entrenched" in the PLP. Louis Bacon, Fred Smith, Darville, Romauld Ferriera and Rev. C. B. Moss did not report the alleged murder plot to the police. The claims were revealed in a court action filed on March 9 and outlined principally in a detailed affidavit by John Joseph DiPaola, an investigator hired out of Fort Lauderdale, Florida.
By Candia Dames
Managing Editor
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