Freedom of Information shifts

OGP_logo“…Trinidad and Tobago maintains that the principles of open government-accountability, transparency and citizen participation are essential for effective democratic governance…In the execution of good governance, efforts are currently underway to increase the availability of information about governmental activities, support civic participation, implement the highest standards of professional integrity throughout the administration and increase access to new technologies for openness and accountability…”
—These extracts are from the T&T official statement on the Open Government Partnership, which this country joined in 2013.

The ongoing Information War is increasingly driven by the Freedom of Information Act (FoIA), which in 1999 created the right to obtain information held by Public Authorities, subject to certain limitations as to State security and private or commercial information.

The relationship between a bank and its customers is a useful analogy to understand these principles. The customer depositing money into her account does so for safekeeping and to earn some small interest. Although the bank is responsible for that money, at no point in time is it the property of the bank – indeed, it is a liability in the bank’s accounts. The bank merely has custody of that money and must follow the customer’s lawful instructions as to how that money is dealt with.

The FoIA at S.4 defines ‘official documents’ held by Public Authorities as – “…a document is held by a public authority if it is in its possession, custody or power…”.

The Privy Council ruled on 20th May 2019 in favour of well-known UNC activist, Ravi Balgobin Maharaj, who was seeking leave to file a judicial review of the refusal of Petrotrin to release two witness statements made in intended legal action against a former Board of Directors. That was a PNM-appointed Board, chaired by the late Malcolm Jones, and the intended US$97M legal action was in respect of alleged negligence in Petrotrin’s large-scale investment in the Gas to Liquids project. That legal action was stopped during the term of the current PNM administration, so the air was rife with allegations and denials.

At the post-Cabinet press briefing on 23 May 2019, PM Rowley made a commitment to have refusals of FoIA requests by Public Authorities subject to vetting by the Attorney General so as to reduce ‘unnecessary liabilities’, in terms of legal costs, on the State. Dr Rowley made two further important statements –

  1. A general principle – “…Because outside of national security matters and matters of the Cabinet…there are few other matters on the government files, that should really be secret…
  2. In relation to the Petrotrin matter, on which the Privy Council had just ruled – “…I am instructing the Minister of Energy to use the authority that he has under the Constitution to instruct Petrotrin to make the two witness statements, the same thing that went to the Privy Council, that they (the UNC) claim is the smoking gun, available and public, so that the public can read them and determine whether Malcolm Jones can rest in peace…

The FoIA judicial review against Petrotrin has now been reportedly re-filed, since those two witness statements have not been released –

“…Maharaj said Rowley and Attorney General Faris Al-Rawi have both said there is nothing incriminating or conspiratorial in the witness statements. He questioned why the statements have not been released. Maharaj also claimed the law firm representing Petrotrin, JD Sellier and Company, refused to accept service of the claim. He alleged the firm said it had no instructions on the matter.

As such, Maharaj said he now has to serve the FoIA claim directly on Petrotrin…”

While the PM’s statements on the application of the FoIA are welcome, I am aware of a cosy consensus across the so-called political divide. Let me explain.

Under S.40 of the FoIA –

“…40. (1) The Minister shall, as soon as practicable after the end of each year, prepare a report on the operation of this Act during that year and cause a copy of the report to be laid before each House of the Parliament…”

foia2That Report was a valuable examination of the operation of the FoIA, but the last such Report was laid in Parliament in 2010. Since 2010, we have had no official Report on this important aspect of our rights as citizens, but it does not seem to have disturbed either political camp. I am subject to correction, but no protest or strong statement on that breach of the law comes to mind.

More particularly, the Invaders’ Bay matter was an action by the JCC to disclose the legal advice relied upon by the Minister of Planning and Development in relation to the proposed large-scale development of public property at Invaders’ Bay in POS. In that case, the State lost at both the High Court and Appeal Court stages, with no further action taken to file an appeal to the Privy Council. Indeed, para 38 of that Privy Council ruling on the Petrotrin FoIA matter refers to that Invaders’ Bay ruling as “…the leading decision of the Court of Appeal…”. Yet that Court of Appeal ruling that those legal advices be published remains unenforced. Of course, it is entirely unrealistic to expect that the UNC would ever protest that failure or refusal to satisfy the Court of Appeal ruling, since the illegal decision to refuse disclosure was made during its term in office as the Peoples Partnership.

That is the cosy consensus which binds us, in this Information Age.


6 thoughts on “Freedom of Information shifts

  1. hi afra

    once again tx for your continued mission for open and transparent govt…

    whiter Good governance T&T…?

    You have indeed hit the proverbial nail on the head. No govt once in power voluntarily practices transparency or accountability despite what they say in opposition or on the election campaign trail

    it is always a case of the pot calling the kettle black …with politics& their financiers .. unless we Change d Politics and create new MP from NEW Parties with legal obligation to account

    For honour is lost in this political regime for sure ..
    with sitting UNELECTED senator who is charged& guilty for two crimes DUI & defamation despite civic concern that he should be removed.

    At the highest level of law making in our democracy( parliament & juidciary) any misbehavior in public office ( and being charged& found guilty of two crimes is that ) require sternest of responses. And resignation / revocation of senatorship should have been promptly done .. in honourable and good governances

    and of course two Privy Council rulings on CJ and now FOIA both of which expose to Commonwealth just how poor the governance of the current Rowley led regime is…and both speak to Misbehaviour in public office concerns as their continued presence in offices .. taint the integrity of these offices.

    the hypocrites–trojan horses in our midst
    and to those so called quasi watchdog – JCC in construction – no FOIA of any of current regimes projects it seems, despite the very public revelations ( from YOU AFRA ( ex JCC) & MEDIA about lack of transparency and accountability concerns on all procurement/deals of them.. similar to invaders bay issues I dare say

    so who and what is JCC agenda.?. I recall that NH group controlled JCC in past so it is easy to speculate why they remain quiet now – in d face of all this regime questionable procurement practuces now

    sor JCC – what is good for goose( UNC) should be good for gander( PNM ) I await JCC and its many partners ( engineers / architects/ planners / business etc) FOIA request for this regimes many questionable mega state projects that have so far failed transparency & accountability tests
    and forced CIVIC responses to demand via FOIA ..on behalf of public interest

    SO IT IS THE GOVT LACK OF CONTINUED TRANSPARENCY AND ACCOUNTABILITY THROUGH PARLIAMENT THAT DRIVES NOW INCREASING FOIA requests -to reduce legal costs simply the govt must become more transparent and accountable . not secret and devious…( how much do govt lawyers get paid ?)

    and MR one Alexander place rental Al rawi – lets turn transparency & accountability mirror on your family ( 1%)govt rentall deal.. open the cabinet & govt docs just as PM did for UNC deals…

    so I end by reminding who is the biggest hypocrite of all … for when in opposition this is what he said
    guardian monday april 27 2015 a10/11

    under election mandate of’cleaner more accountable PNM rowley govt .
    ” said he was committed to bringing accountability and transparency back into govt to fulfil the mandate under section 75(1) of the constitution .That section states ” there shall be a Cabinet for T&T which shall have GENERAL direction and control of Govt and shall be COLLECTIVE RESPONSIBLE THEREFORE TO PARLIAMENT
    He contended that the Parliament had the authority to hold people PUBLICLY accountable’.( tell that to CEPEP team )
    he continued’ THAT THERE IS NEED FOR BETTER OVERSIGHT OF THE CABINET BY THE PARLIAMENT” indeed it would have prevented or at least alerted o UDECOTT /UF Clico colman
    petrotrin – macolom jones and all current ROWLEY regime gates – FERRY / sport/ Chinese BELT deals hdc / European PORT/ Boeing crash planes deal etc etc……NONE OF WHICH HAE BEEN PRESENTED TO PARLIAMENT FOR OVERSIGHT SCRUTINY

    he NOTED that in past administrations this oversight was ineffective and stated a smaller cabinet would allow for improved parliament oversight of Cabinet’ is this working?all we see is the young – al rawi control with accountability….suspect really…

    The current citizen reality as I perceive it …is this simply allows PM to select his chosen cartel( elite links to political financiers ) for cabinet to do Secret deals ( mou etc non disclosure )
    ( as per ronald huggins guardian letter to editor june 26 2015 ttled – where is the campaign finance reform?) and call uon MP to tow the party line while politicising the Opposition role
    in parliament as oversight body for govt to call it to account!!

    the best thing you can do for this country is improve our monitoring your monitor , you reor and you hold people accountable…..

    I am not giving cabinet details..( his version of transparency what he wants to share as long as it is not Rowley PNM secrets)
    But a PM who wants to run a good government should not be afraid of his Ministry being subject to parliamentary oversight ”
    ( well PM need to tell that to State bodies like CEPEP, and THA etc.. and what of post petrorin ..

    I am not saying persecute or prosecute, I am simply sayin hold them accountable and come before parliamentary committee”

    no doubt for PNM cronies as malcolm jones petrotrin scandal or UDECOTT /UFF or Clico- Colman …

    the old eric williams put a monkey ( n donkey?) on PNM seat and it will win.

    For monkey cyah see d end of its tail …
    to hypocrite current non transparent regime.. more” corrupted” than ever * as TI CPI score shows no significant improvement over past years in office and
    no campaign finance bill either…. as promised…

    crying for failed governance of my beloved T&T

  2. As long as our leaders need money to secure a seat in any house, the masses stand no chance of influencing any significant change. Money feeds greed yet so many other things can be done without money if we pay close attention to our entrepreneurs, our youth and our resources. We see through financial lenses what our natural vision could not just emulate, but surpass. We allow the glitter and eloquence (aptly critiqued by Socrates as sophism) of foreign tongues to have us consume bogus commodities at exorbitant prices and sell our human skills and natural resources for crumbs comparatively.
    No school of pragmatic thought, developmental strategy or innovation has mapped out the way forward for us, or perhaps those maps are confidential. We hop along adapting to the fiscal whiplashes of the rich aiming for emulation while preaching freedom and independence. Perhaps it is good that we hardly listen to ourselves.

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