‘…When we were growing-up, the Ten Commandments were drummed into us, in an effort to impart certain values…the way things are in T&T these days, it looks like we all have to live with the Eleventh Commandment…Thou shalt not be found out!…’
Today is eight weeks after the Appeal Court made its Consent Order on 24th January 2018 in this protracted litigation between the Ministry of Finance & The Economy and I. Since then, we have been chasing the information which the Ministry agreed to provide. We have had not one item or detail delivered and it is my view that had we not been chasing this continuously, the matter would have simply died.
That is what we are dealing with here. I am constrained to recite the misunderstood phrase, born out of frustration, but it looks like we are dealing with yet another ‘recalcitrant minority‘. Some readers may find that choice of phrase to be going too far in what might be simple inefficiency, rather than any deliberate obfuscation. Of course everyone is entitled to their view, so I am going to set out a few of the key event so that readers can decide.
This matter has gone well beyond a Freedom of Information request, as I am now holding an order from the High Court and another from the Appeal Court. Given those facts, the delays of the various public officials involved are serious, seeming to show a lack of haste which verges on contempt of court. Of course, the key officials with which my attorneys are engaging are also attorneys. I tell you.
At one stage, over a month after the final hearing on 24th January, we were being asked for a copy of the Consent Order granted at that hearing. The official asking that question was one of the State’s attorneys who was engaged in this matter. That Consent Order would be available to that person if they requested it from the Court, or from my blog which included it in my first article on that hearing. Despite those choices, we were asked for the Order and provided it within minutes. One can scarcely believe that the document was not in the files or that the attorney was unaware of the option to order a copy from the Registry of the Court in the preceding month. This is just one of the delaying tactics which forced me to ask – Just what is going on here?
One can only wonder what is the cause of these delays and who is benefiting from those? Can it be, as has been suggested to me, that some redaction of records is underway, or is the time being extended to explore other options for those who value their privacy?
In addition, the Provisional Liquidators’ 3-monthly Report, which was due to be filed in the High Court on 1st February 2018, is being held for the view of the parties to the matter only. Where is the public in all this? Is the public a party to this matter or am again I being idealistic? Are we once again, having funded the entire CLF bailout from scarce Public Money, to be relegated to an outside party in terms of public information?
As a sardonic with might say –
‘There’s something in the Air, but it ain’t Love‘
ADDENDUM: The Separation of Powers
The 22nd January 2018 affidavit set out a clear position, which accepted that there are no applicable exemptions in the FoIA to prevent publication of the presentation made to Independent Senators in September 2011. Its twelfth paragraph states –
“…As to the Order in relation to Request No. 2 the Appellant’s position is that it accepts that there is no exemption on which the Appellant can rely…”
We will therefore be applying for that separately. The affidavit was not disclosed to our team until the morning of the litigation and therefore did not form part of our discussions on the Consent Order. Of course, the State’s original S.55 objection raises an inescapable Constitutional point on the right of Parliament to conduct its business without the intrusion of the Courts. That is a valuable safeguard which ought not to be trifled with.
One can well understand the need for the Parliament to be able to conduct its business without the fear of ‘wicked litigation‘ hampering the freedom of expression in our country’s highest chamber of deliberation. Those protections are critical if the Parliament is to do its work, yet, as in all things, we need to discuss the boundaries. The point being that those exemptions are intended to remove the fear of imprisonment or a Court ruling for damages from the minds of our Parliamentarians.
But what happens if there is a public interest lawsuit in which only information is being sought? A case in which there is no prospect whatsoever of any finding leading to either imprisonment or an order for damages. Cases like the ones brought in the Invaders’ Bay matter or this one, in which all that is being sought is information. In my view, lawsuits seeking information which might be politically damaging ought not to be considered in the same light as those which are seeking damages or prosecutions which could lead to imprisonment.
The current position is peculiar, to say the least, since the newspapers and indeed, the citizens, can and do take proper account of the statements made in our Parliament. The anomaly arises because, under S. 55, only the Courts are unable to take account of the statements emanating from our Parliament. That is the issue. In my view this is an aspect of our current arrangements in need of further development of the law. We have made a start in these matters.