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Court rules in JCC’s favour in $5.5b Invaders Bay project
A construction lobby group has won the right to see legal advice given to the Planning Ministry on the award of a $5.5 billon contract to develop public property in Invaders Bay, Port-of-Spain. In a 28-page judgment, in favour of the Joint Consultative Council for the Construction Industry (JCC), High Court judge Frank Seepersad ruled that the Planning Ministry’s refusal to disclose the documents was illegal, null, void and of no effect.
Seepersad said the failure of government agencies to disclose documents related to procurement in multi-million-dollar construction projects might create a “perception of misfeasance in the process” and a corresponding loss in public confidence. He said: “The public interest in having access to the requested information there is far more substantial than the defendant’s (the ministry’s) interest in attempting to maintain any perceived confidentiality in relation to the said information.”
The JCC filed the lawsuit early last year, after the ministry’s permanent secretary refused its request under the Freedom of Information Act, which gives members of the public the right to access official documents of public authorities. The JCC, through its president Afra Raymond, began asking for information on the project in November 2011 after the minister, Dr Bhoe Tewarie, initiated a request for proposals, bypassing the Central Tenders Board. The ministry told the JCC it had sought legal advice from the office of the Attorney General and had been told the Tenders Board was not required in the tendering process.
The JCC then wrote to Tewarie asking for the documents relating to the legal advice under the freedom of information legislation. After several delays, the JCC threatened legal action, prompting the permanent secretary of the ministry to respond, refusing the request on the ground that the information was exempted under the legislation, as it fell within legal professional privilege and its disclosure would be contrary to the public interest. But Seepersad said the ministry failed to prove its public-interest concerns.
He said even if it had been able to do so, it was still required to do a public-interest-override assessment to determine if the need to disclose the documents outweighed its concerns.
“It must always be in the public interest to ensure that the activities and projects undertaken by Government are transparent and all attempts should be made so as to dispel any perception of the misappropriation of public funds and financial impropriety,” Seepersad said. He also agreed with the JCC’s submission that Tewarie had waived the ministry’s legal-privilege rights when he spoke on the issue while answering questions in the Senate in February 2012. “Having clearly communicated this position in the nation’s Parliament, the position that the documents containing the said advice can still be subject to legal professional privilege, and that no reliance can be attached to the said statement because it is covered by parliamentary privilege, is untenable,” Seepersad said. The JCC was represented by Kingsley Walesby. Russell Martineau, SC. Shiv Sharma and Deowattee Dilraj-Batoosingh appeared for the minister.
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