Derek Achong

A High Court Judge has ruled that the Of­fice of the Au­di­tor Gen­er­al is sub­ject to the pro­vi­sions of the Free­dom of In­for­ma­tion Act (FOIA).

Jus­tice Kevin Ram­cha­ran made the rul­ing late last month as he up­held a law­suit from for­mer pub­lic ser­vant Joan Chee.

Ac­cord­ing to the ev­i­dence in the case, Chee made a FOIA ap­pli­ca­tion in 2020 af­ter she re­tired from the Port-of-Spain City Cor­po­ra­tion the pre­vi­ous year and re­ceived no up­date on her pen­sion and gra­tu­ity.

Chee, who passed away be­fore Jus­tice Ram­cha­ran’s rul­ing, had pre­vi­ous­ly suc­ceed­ed in law­suits against the Statu­to­ry Au­thor­i­ty Ser­vice Com­mis­sion for be­ing by­passed for pro­mo­tion and the cor­po­ra­tion for fail­ing to pay her gra­tu­ity up­on her re­tire­ment.

In the ap­pli­ca­tion, Chee re­quest­ed in­for­ma­tion on the of­fice’s pol­i­cy and prac­tice in terms of as­sess­ing the pen­sion and gra­tu­ity of pub­lic of­fi­cers such as her and the gen­er­al time frame for such to be per­formed.

She al­so re­quest­ed in­for­ma­tion on which State en­ti­ties are re­quired to seek ap­proval from the of­fice for such cal­cu­la­tions and a sta­tus up­date on her ap­pli­ca­tion.

The of­fice pro­vid­ed the re­quest­ed in­for­ma­tion. How­ev­er, it still claimed that it was not sub­ject to the FOIA, based on a le­gal opin­ion from the So­lic­i­tor Gen­er­al in 2003, lead­ing to the law­suit be­fore Jus­tice Ram­cha­ran.

In de­fence of the law­suit, the of­fice claimed that it should be dis­missed, as there was no ev­i­dence of oth­er pub­lic ser­vants hav­ing dif­fi­cul­ties in ac­cess­ing their gra­tu­ity and pen­sion ben­e­fits. It al­so point­ed out that Chee even­tu­al­ly re­ceived her pay­ments.

While Chee’s le­gal team ac­cept­ed that they re­ceived the re­quest­ed in­for­ma­tion and pay­ments, they claimed the case was still im­por­tant as the dis­clo­sure was based on ad­min­is­tra­tive dis­cre­tion and not a le­gal du­ty un­der the FOIA.

In his de­ci­sion, Jus­tice Ram­cha­ran agreed the case was not aca­d­e­m­ic, as if not de­ter­mined, the Au­di­tor Gen­er­al’s Of­fice may refuse sim­i­lar re­quests in the fu­ture.

In rul­ing that it was sub­ject to the FOIA, Jus­tice Ram­cha­ran not­ed that al­though it per­forms an in­de­pen­dent func­tion on be­half of the State, it is still re­quired to sub­mit re­ports to Par­lia­ment and the Min­is­ter of Fi­nance.

As part of his de­ci­sion, Jus­tice Ram­cha­ran or­dered the State to pay the le­gal costs in­curred by Chee in pur­su­ing the case.

Chee was rep­re­sent­ed by Anand Ram­lo­gan, SC, Jayan­ti Lutch­me­di­al, Renu­ka Ramb­ha­jan and Alana Ram­baran. The Of­fice of the Au­di­tor Gen­er­al was rep­re­sent­ed by At­tor­ney Gen­er­al Regi­nald Ar­mour, SC, Raphael Ajod­hia, Rezia Red­head and Tiffany Kissoon.