On 28 October 2016, the Appeal Court delivered its majority ruling upholding the decision of Justice Frank Seepersad on 14 July 2014 to order publication, under the Freedom of Information Act (FOIA), of the legal opinions on which the Ministry had been relying. The JCC had won its case at both the High Court and the Appeal Court, so I called for immediate publication of the requested information. The JCC made no such call, neither did any of my erstwhile colleagues.
At an Appeal Court hearing on 21 November 2016, the State obtained leave, with the JCC’s consent, to appeal this matter at the Privy Council. Whilst in Opposition, the PNM made repeated complaints against the secretive conduct of the Invaders’ Bay development by the Peoples Partnership. Now in Government, the PNM has elevated secrecy in public affairs to a new prominence.
Since Dr James Armstrong was appointed JCC President in December 2015, that organisation has been silent on the Invaders’ Bay matter. This had previously been of high importance as a major development in our capital city, which was proceeding illegally and improperly. The JCC now seems to have reversed its earlier position of pressing for publication of those vital, suppressed documents.
This case began in 2012, when the JCC sought a judicial review of the refusal of the Ministry of Planning & Sustainable Development to publish legal opinions which the Ministry claimed supported its Request for Proposals (RFP) process in the proposed development of Invaders’ Bay. The JCC contended that the RFP process was in breach of the Central Tenders Board Act, but the Ministry claimed to have legal advice that its actions conformed to the CTB Act. It was that advice which the Ministry refused to publish. It is well-known here that politicians of all stripes will publish legal opinions which support their actions in contested situations. But at Invaders’ Bay the politicians are refusing to publish opinions which supposedly vindicated their actions.
This Appeal Court ruling gave greater weight to the mandatory ‘Public Interest Test’ under the FOIA, against the Ministry’s reasons for its refusal on the grounds of legal professional privilege. The previous practice gave the State discretion as to whether legal advice can be released. Had the JCC lost the Appeal, any questionable project or policy could be concealed behind the screen of legal professional privilege. This ruling therefore significantly fortified the Public Interest.
How much Public Money was spent on legal fees and to exactly whom did those monies go? More of our limited Public Money is now to be spent in pursuance of further secrecy in Public Affairs.
The essential issue being decided in this case was the correct balance between the long-standing principle of legal professional privilege, which allows a client to receive legal advice in complete confidentiality, and the modern concept of freedom of information, which allows the citizen to obtain official documents, subject to the provisions of the FOIA.
This Appeal Court ruling is of special interest since, unusually, each of the three judges gave separate rulings.
Justice Rajendra Narine, who dissented from his colleagues, in the 79th para of his ruling asks –
“…The question then becomes whether, in the particular circumstances of this case, is there (sic) any special feature that causes the balance to lean in favour of depriving the Minister of his fundamental right to legal professional privilege to which he is entitled like any other litigant? In my view, there is no such feature in this case…”
Given that the Minister, Dr Bhoendradatt Tewarie, repeatedly stated that the legal advices vindicated his actions, his continuing refusal to publish those was bewildering, to say the least.
Justice Nolan Bereaux, who upheld the High Court judgment, stated –
“…It is not just a question of legality but also a question of transparency. It is important not only that the decision to bypass the Central Tenders Board be legal and properly made but also that the process by which that decision was arrived at be seen to be so…” (para 85)
On balancing the two rights –
“…I do not consider that the lawyer/client relationship will be negatively impacted in any significant degree….In this case the disclosure sought is in respect of advice by public officers about a project to be executed on valuable public lands, which is to be financed by a considerable injection of public funds. On the contrary it is likely to foster greater care in the giving of advice. For the same reason it is unlikely that the candour between Ministers, or between Ministers and legal officers will be adversely affected. In any event, the public benefits of transparency outweigh it…” (para 86)
Justice Peter Jamadar gave an important reading of the situation, focusing on the role of the preamble to our Constitution and the meaning of the phrase ‘essential public interest’ in the FOIA.
“…I am of the opinion that, in the circumstances of this case, the public interest, transparency and accountability benefits far outweigh any damage that may be caused to the principle of legal professional privilege by the disclosure of the documents sought. Having carried out the requisite balancing exercise, I can find no justifiable and sufficiently essential public interest considerations of type or degree to support non-disclosure of the documents sought. It may be worth reminding ourselves that whereas freedom, transparency and accountability are the hallmarks of a participatory democracy, secrecy lies at the heart of dictatorships….” (para 47)
I could not agree more.