JENSEN LA VENDE

Se­nior Re­porter

jensen.lavende@guardian.co.tt

Three Ap­peal Court judges on Mon­day dis­missed a chal­lenge by the Strate­gic Ser­vices Agency (SSA) af­ter it re­fused to di­vulge full in­for­ma­tion to ac­tivist Ravi Bal­go­b­in Ma­haraj un­der the guise of it be­ing a mat­ter of na­tion­al se­cu­ri­ty.

The judg­ment came from Jus­tices Vasheist Kokaram, Prakash Moo­sai and Mi­ra Dean-Ar­mor­er af­ter the SSA ap­pealed a High Court rul­ing man­dat­ing it sup­ply da­ta un­der the Free­dom of In­for­ma­tion Act (FOIA) to Ma­haraj.

The ap­peal stemmed from a March 15, 2017, FOIA re­quest where Ma­haraj sought de­tails on the num­ber of in­ter­cep­tions con­duct­ed with­out ju­di­cial war­rants in 2015 and 2016, and the num­ber of re­gion­al and in­ter­na­tion­al con­fer­ences and sem­i­nars at­tend­ed by the SSA.

The re­quest for in­for­ma­tion was re­fused in April 2017, un­der Sec­tions 25, 26, 28, 32 and 34 of the FOIA. The SSA claimed that dis­clos­ing the in­for­ma­tion would prej­u­dice na­tion­al se­cu­ri­ty, law en­force­ment op­er­a­tions and in­ter­na­tion­al re­la­tions. This was sup­port­ed by the Min­istry of Na­tion­al Se­cu­ri­ty, which is­sued a cer­tifi­cate un­der sec­tion 25(3) of the Act cer­ti­fy­ing that the doc­u­ments were ex­empt as the dis­clo­sure would like­ly prej­u­dice the coun­try’s de­fence and the law­ful ac­tiv­i­ties of the se­cu­ri­ty and in­tel­li­gence agen­cies.

In the 40-page de­ci­sion writ­ten by Kokaram and sup­port­ed by Dean-Ar­mor­er and Moo­sai, the judges said trans­paren­cy is a cen­tral part of any de­mo­c­ra­t­ic so­ci­ety.

“A well-in­formed cit­i­zen­ry is a cher­ished cor­ner­stone of a par­tic­i­pa­to­ry democ­ra­cy. Trans­paren­cy is a core facet of open gov­ern­ment and good gov­er­nance. Se­cre­cy serves as its dark coun­ter­part, breed­ing in­ef­fi­cien­cy and mis­trust in pub­lic in­sti­tu­tions, an en­dem­ic fea­ture of mal­ad­min­is­tra­tion. A un­in­formed or mis­in­formed cit­i­zen­ry, there­fore, robs it of the dig­ni­ty of par­tic­i­pa­tion in the af­fairs of the coun­try, de­nudes the rule of law and makes a farce of de­mo­c­ra­t­ic val­ues of state ac­count­abil­i­ty.”

As of De­cem­ber 13, 2017, the SSA was ex­empt­ed from re­quests un­der the FOIA.

De­spite that, the judges con­tend­ed: “Re­gard­less of the fact that the SSA op­er­ates in a quad­rant of na­tion­al se­cu­ri­ty, with­in a tra­di­tion­al zone of ex­clu­sion of some of its de­ci­sions from ju­di­cial re­view, it is not im­mune from scruti­ny in the pub­lic in­ter­est. Its op­er­a­tion strad­dles the pub­lic sphere so that the pub­lic’s right to know mat­ters con­cern­ing the le­git­i­ma­cy of its op­er­a­tions must be weighed against the nar­row ex­clu­sive zone of na­tion­al se­cu­ri­ty in­ter­ests which jus­ti­fi­ably shields the pub­lic from its view.”

To de­fend their po­si­tion, the SSA re­lied on “mo­sa­ic prej­u­dice,” stat­ing that even seem­ing­ly in­nocu­ous in­for­ma­tion, when com­bined with oth­er da­ta, could re­veal sen­si­tive in­tel­li­gence ca­pa­bil­i­ties, which the judges dis­agreed with, say­ing the SSA lacked ev­i­dence of any re­al-world prej­u­dice and re­ly­ing on that would al­low the State to with­hold prac­ti­cal­ly any and all in­for­ma­tion.

“The FOIA un­der­lines the tru­ism, even in mat­ters of na­tion­al se­cu­ri­ty, that a knowl­edge­able pub­lic is an em­pow­ered one. Knowl­edge through ac­cess to in­for­ma­tion un­der the FOIA lends to the in­di­vid­ual’s dig­ni­ty, en­light­en­ment and free­dom from the op­pres­sion of in­com­pre­hen­sion by the dark shrouds of mys­tery con­cern­ing the af­fairs of gov­er­nance.”

Kokaram wrote: “The tri­al judge held that a sim­ple read­ing of sec­tion 6 of the In­ter­cep­tion of Com­mu­ni­ca­tions Act demon­strates that it is the in­for­ma­tion which has been law­ful­ly in­ter­cept­ed that is the sub­ject of the ex­emp­tion and not the num­ber of in­ter­cep­tions. It was there­fore dif­fi­cult to see how know­ing how many in­ter­cep­tions were con­duct­ed with­out ju­di­cial war­rants can re­veal the SSA’s ca­pac­i­ty to con­duct in­ter­cep­tions or the type of equip­ment be­ing utilised. To the tri­al judge, it seemed more like­ly than not that the SSA just did not want to re­veal how many in­ter­cep­tions were con­duct­ed with­out any ra­tio­nal or jus­ti­fi­able ba­sis.”

The rul­ing comes two weeks af­ter De­fence Min­is­ter Wayne Sturge de­clined to say whether pre­vi­ous­ly ap­proved US-as­sist­ed op­er­a­tions were still un­der­way in the coun­try.

Dur­ing the post-Cab­i­net me­dia brief­ing on Feb­ru­ary 12, when asked whether the Unit­ed States was still us­ing Trinidad and To­ba­go’s air­space or whether US mil­i­tary per­son­nel re­mained on the is­land, Sturge re­fused to pro­vide de­tails.

Cit­ing Par­lia­men­tary Stand­ing Or­der 27(1)(g), which al­lows a min­is­ter to with­hold in­for­ma­tion if dis­clo­sure is deemed not in the pub­lic in­ter­est, he said: “The mat­ters which the US mil­i­tary hap­pen to be in­volved in are mat­ters which I ought not to dis­close to the pub­lic.”

When asked why he could not dis­close whether the US is us­ing T&T’s air­space, he said, “Ob­vi­ous­ly for na­tion­al se­cu­ri­ty rea­sons.”

The judges found that the in­for­ma­tion should be dis­closed and that the SSA pay the le­gal costs of the Ma­haraj, who was rep­re­sent­ed by Se­nior Coun­sel Anand Ram­lo­gan, Jared Ja­groo and Ganesh Sa­roop, Mau­reen Rad­hay and Natasha Bis­ram. The SSA was rep­re­sent­ed by Fyard Ho­sein, SC and oth­ers. Spe­cial state pros­e­cu­tor Ran­dall Hec­tor had al­so rep­re­sent­ed the SSA on the mat­ter be­fore he was mur­dered.