This is an update on my efforts to get the remaining details of the CL Financial bailout in which over $25 Billion of our scarce Public Money has been spent.
Although the details of over 13,200 EFPA claimants who received $10.823 Billion were provided, the Consent Order entered in the Appeal Court on 24th January 2018 has not been fully complied with. The Ministry of Finance is now claiming that the CL Financial accounts relied upon by then Finance Minister, Winston Dookeran, in preparing his 3rd April 2012 affidavit cannot be found. Also missing in action is the list of creditors of CL Financial. I am challenging that non-compliance with the assistance of my attorneys.
After ending the lawsuit in January 2018, I made further requests for information from the Finance Ministry so that we could have all the details of all the payments made in this bailout. Those requests have now escalated to the stage that I have filed a new lawsuit under the Freedom of Information Act (FoIA) for the refused details.
S.35 of the FoIA establishes the Public Interest Test, against which all intended refusals must be considered. In this matter, the issues are clear and compelling, in favour of full disclosure of the requested details, given the tremendous, inexplicable escalation in these costs from the 2009 estimate of $5.0 Billion to the present total of $25.95 Billion of Public Money paid. I previously detailed further cogent queries as to the extent of the outstanding liabilities to be borne by the State, amounting to several Billion dollars of Public Money. Put it this way, if there is no publication of all the details of all the payments, how then can we ever account for the incredible cost escalation in this CLF bailout?
We must remember the examples of the Secret Scholarship Scandal and the recent revelations as to the mis-allocation of the flood relief funds, now playing-out before the Courts. In addition, we must consider other types of Public Money contracts, details of which are freely disclosed. The necessary transparency and accountability would be jeopardised if the Court were to rule in favour of secrecy as to contract details. The prevalence of the Design Build Finance and Public Private Partnership models require our vigilance on these matters. Finally, consider our country’s full membership of the Open Government Partnership.
These are the main refused items –
Presentation to Independent Senators
The Ministry is now claiming that the September 2011 formal presentation to Independent Senators is lost.
Consider – Firstly, the Ministry appears to be resiling from its earlier line that this query is now off-limits for me due to the fact that that the formal presentation was excluded in the Consent Order of 24th January 2018. Secondly, the Ministry has not treated with our reasonable request to examine their email and hard-copy correspondence records for this. The Ministry’s position is therefore untenable in light of S.14 (3) of the Act –
“(3) Without prejudice to section 21, a public authority shall take reasonable steps to assist any person in the exercise of any other right under this Act.”
With today’s search capabilities, it is no great task to examine the Ministry’s email records to locate the relevant documents. In any case, I have excluded this item from the current legal challenge.
Details of payments to other claimants/creditors
The Ministry is refusing to disclose the details of the other beneficiaries of this huge bailout. The details of the payments of over $15 Billion are being suppressed on the basis of the fear of crime and so on.
Even if one said that the privacy being sought is applicable only to finance contracts, one must ask, “On what basis are these finance contracts being privileged with such privacy?”
In November 2018, the Ministry of Finance made the astonishing claim that their March 2018 disclosure of the full details of payments made to EFPA holders was an error. Well I tell you.
That is a risible claim, given the length of time taken to compile those records after the Consent Order of 24th January 2018. We are being asked to accept that, after all that time and care spent in verifying and compiling that tremendous quantity of data, the Ministry included names and amounts in some kind of clerical error. What is more, I have engaged in detailed exchanges with the PS Finance since 24th April 2018 on this matter. I referred to the Ministry’s prior disclosure of those EFPA payee details at every turn, yet there has never been any attempt before 19th November 2018, to resile from that disclosure or claim error. When did this error occur to them? This rickety claim is rooted in the necessity to dilute or erase the earlier voluntary disclosure of those details, nothing more and nothing less.
Details of payments of Interest and Finance charges
Those costs escalated from $30,640,697.82 per month between 30th January 2009 and 30th April 2016 to $85,895,308.99 per month between 30th April 2016 to 30th June 2018. Over one Billion dollars a year in interest, why? That is 2.8 times more in monthly interest charges.
The costs of financing and interest were provided, but only in total, with our request for details being refused.
A bank’s customer who requested details of transactions in their account in a particular month would not be provided with totals of deposits and payments, the bank would provide details of each payment and deposit to corroborate those totals. That is the clearly understood standard for answering such queries. It is simply untenable for the Ministry to claim that the totals provided are the details requested.
Details of payments of professional fees and other expenses
All that was given is totals for payments, with only names supplied without amounts paid to those firms.
The Ministry claimed similar concerns as to the fear of crime and also made suggested that those firms might be unwilling to work for the State again if those details were published.
On 1st July 2016, our PM, Dr Keith Rowley made a very important prepared statement to the Parliament on this matter, with special emphasis on the then recently-completed Colman Report. (pp. 35-42) In the course of that statement, Dr Rowley gave specific details of legal fees paid to the lawyers in that Commission of Enquiry – names and amounts paid to those lawyers. Given the prepared public position taken by the PM in this matter, it is simply untenable for the Minister of Finance to sustain the position that the details of those professional fees are somehow privileged.
Transparency and Accountability are seminal Public Goods which the Courts need to defend and advance if we are nurture our nation.