Sto­ries by Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

The Min­istry of Fi­nance has been giv­en a month to dis­close in­for­ma­tion re­lat­ed to the le­gal fees paid by pub­lic bod­ies un­der its con­trol and su­per­vi­sion be­tween 2015 and 2022. 

High Court Judge Devin­dra Ram­per­sad set the dead­line on Wednes­day as he up­held a law­suit un­der the Free­dom of In­for­ma­tion Act (FOIA) brought by so­cial and po­lit­i­cal ac­tivist Ravi Bal­go­b­in Ma­haraj. 

The law­suit cen­tred around a FOIA re­quest made by Ma­haraj in Jan­u­ary 2022. 

The min­istry re­spond­ed two months lat­er, stat­ing that the re­quest had been grant­ed but in­di­cat­ing that for­mer fi­nance min­is­ter Colm Im­bert need­ed ad­di­tion­al time to source and sup­ply the in­for­ma­tion.

It al­so stat­ed that it would have to con­sult with at­tor­neys that were hired by the bod­ies, as their pri­va­cy rights may be in­fringed by the dis­clo­sure. 

In Oc­to­ber 2022, the min­istry in­di­cat­ed that there was no doc­u­ment held by the min­istry, which con­tained the re­quest­ed in­for­ma­tion, and that the min­istry would seek to com­pile such in­for­ma­tion for dis­clo­sure. 

Ma­haraj, through his lawyers led by Anand Ram­lo­gan, of Free­dom Law Cham­bers, filed the law­suit chal­leng­ing the min­istry’s han­dling of the FOIA re­quest. 

Re­spond­ing to the claim, the min­istry claimed that it was not ob­lig­at­ed un­der the leg­is­la­tion to com­pile the in­for­ma­tion as it was not in a sin­gle doc­u­ment. 

It did pro­vide a break­down of the le­gal fees paid by the min­istry and sug­gest­ed that Ma­haraj should ap­ply di­rect­ly to some of the pub­lic bod­ies for in­for­ma­tion spe­cif­ic to them. 

In de­cid­ing the case, Jus­tice Ram­per­sad re­ject­ed the min­istry’s con­tention. 

“It is, with re­spect, disin­gen­u­ous for a pub­lic au­thor­i­ty to con­tend, on the one hand, that it is un­der no oblig­a­tion to pro­vide the re­quest­ed in­for­ma­tion be­cause no sin­gle com­pos­ite doc­u­ment ex­ists, and, on the oth­er hand, to pro­ceed to pro­vide that very in­for­ma­tion, whether par­tial­ly or over time, from the very records said not to give rise to any oblig­a­tion,” Jus­tice Ram­per­sad. 

“The FOIA does not, re­spect­ful­ly, per­mit a pub­lic au­thor­i­ty to re­ly on tech­ni­cal dis­tinc­tions in for­mat as a ba­sis for re­fusal while si­mul­ta­ne­ous­ly demon­strat­ing, by its own con­duct, that the in­for­ma­tion can be ex­tract­ed from ex­ist­ing records,” he added. 

Jus­tice Ram­per­sad said that the po­si­tion was re­in­forced by the fact that the in­for­ma­tion could be eas­i­ly com­piled by search­ing the com­put­er data­bas­es. 

“Ad­min­is­tra­tive in­con­ve­nience or in­ef­fi­cien­cy can­not be re­lied up­on to de­feat a statu­to­ry right of ac­cess, par­tic­u­lar­ly where the in­for­ma­tion sought must, as a mat­ter of or­di­nary pub­lic ac­count­ing, al­ready be record­ed and re­triev­able,” Jus­tice Ram­per­sad said. 

“A search with­in stat­ed time pe­ri­od pa­ra­me­ters in re­la­tion to a par­tic­u­lar cat­e­go­ry on such a dig­i­tal plat­form is pos­si­bly re­triev­able in sec­onds,” he added. 

Jus­tice Ram­per­sad al­so crit­i­cised the min­istry for di­rect­ing Ma­haraj to send re­quests to some of the pub­lic bod­ies un­der its con­trol and su­per­vi­sion. 

“In this court’s re­spect­ful view, the bur­den fell square­ly on the de­fen­dant, as the de­ci­sion-mak­er, to iden­ti­fy the rel­e­vant cat­e­gories of pub­lic au­thor­i­ties and to spec­i­fy which en­ti­ties fell with­in each cat­e­go­ry at the time of the ac­cess de­ci­sion,” he said. 

“The fail­ure to iden­ti­fy those cat­e­gories at the time of the de­ci­sion, cou­pled with the at­tempt to shift that bur­den on­to the claimant, ren­ders the ap­proach in­con­sis­tent with the statu­to­ry scheme and its un­der­ly­ing ob­jec­tive of fa­cil­i­tat­ing ac­cess to in­for­ma­tion,” he added. 

Jus­tice Ram­per­sad al­so re­ject­ed claims that the dis­clo­sure would be un­con­sti­tu­tion­al as it would breach the at­tor­neys’ right to pri­va­cy. 

He said that the min­istry could not seek to en­force the rights of third par­ties, who could have raised the is­sue them­selves. 

“The de­fen­dant’s statu­to­ry du­ty un­der the FOIA is to de­ter­mine whether dis­clo­sure is re­quired in ac­cor­dance with the Act, not to pre-emp­tive­ly as­sert spec­u­la­tive con­sti­tu­tion­al claims on be­half of oth­ers,” he said. 

He point­ed out that the leg­is­la­tion al­so pro­vides for the dis­clo­sure of ex­empt­ed in­for­ma­tion or doc­u­ments if there is suf­fi­cient pub­lic in­ter­est in do­ing so. 

Jus­tice Ram­per­sad is­sued de­c­la­ra­tions over the han­dling of the re­quest in­clud­ing that the min­istry’s de­lay was un­rea­son­able. He al­so gave an or­der com­pelling dis­clo­sure with­in 28 days. 

The min­istry was al­so or­dered to pay Ma­haraj’s le­gal costs for the law­suit. 

Ma­haraj was al­so rep­re­sent­ed by Jayan­ti Lutch­me­di­al, Kent Sam­lal, Aasha Ram­lal, Natasha Bis­ram and Jared Ja­groo. 

The min­istry was rep­re­sent­ed by Rus­sell Mar­tineau, Ja­son Mootoo and Rom­ney Thomas.