What is a Public Secret? Is that an oxymoron? Public bodies use public lands and/or public money to make agreements, supposedly in the pursuance of the public interest. Yet those same bodies often claim that those arrangements are in fact private. Well I tell you.
That proposition has been advanced, repeatedly and by both political sides, against all good sense and to the continuing detriment of the public.
Two high-profile requests for information were recently refused by public officials and that is the matter I will be examining here.
Firstly, the troubling case of former Sport Minister, Darryl Smith, who was removed from office in April 2018 amidst allegations of sexual harassment of an employee. The discussion soon switched to the existence of an agreement to settle those claims via payment of Public Money to the claimant and further, that non-disclosure provisions formed part of that agreement. On 4 June 2018, a Cabinet-appointed committee reported on that episode, but that report is now said to be unsatisfactory since the former Minister did not have the opportunity to respond to the allegations against him. We are being told that the report cannot be released as that would breach the former Minister’s rights.
This situation is entirely unacceptable, with deep echoes of a sinister abuse of power. If the first report is fatally flawed, why not just appoint a fresh committee to investigate this entire troubling episode, but this time ensure that the former Minister has the required input?
- The second case is the request made to the Office of the Prime Minister for the details of the disposal process for the former Petrotrin refinery at Pointe-à-Pierre. That request assumed, incorrectly in my view, that a decision had been made as to the winning bid, when in fact only a preferred bidder was identified. Commercial confidentiality was cited in refusing the request and Cabinet was within proper limits in doing so, that is my view, given that a selection has not yet been made. Of course, we will have to wait to see if this matter goes to Court, but I would be surprised if such a lawsuit were to succeed.
This is where the standstill period comes into effect, that being the stage at which a tendering body has made a selection and publishes its assessment to allow the tenderers the opportunity to object within a limited period before the contract is actually awarded. The Court would have to do a Public Interest Test to decide if these details are to be published.
ADDENDUM: Some examples of the Public Private Paradox
- The Hotels Management Agreements have been an area of my research for some time as those relate to the State-owned hotels – Hilton Trinidad; Magdalena Grand and Hyatt Regency.
The paradox here is that the Management Agreement for Hilton Trinidad has been published via its registration as an ‘Operatorship Lease’, with no evident harm to the interests of Hilton International, yet those same agreements are deemed confidential for the other two State-owned hotels. Why?Furthermore, that Hilton Trinidad agreement requires that audited accounts be prepared, and we can be sure that those are done, since no international company would operate without those basics. Yet we are flatly refused the details of how this huge investment is performing. We can be sure that if that hotel were making low profits, Hilton International would have invoked some clause and exited, just like they did in Tobago.
- The CLF bailout details have also been a long-term area of my research with the Ministry of Finance in March 2018 releasing to me all the details of $10.823 Billion in Public Money paid to 13,200 EFPA claimants. That same Ministry and that same PS would reverse course four months later, refusing to provide payment details for the $15 Billion paid to claimants from CMMB, CIB, British-American Insurance and CLF itself.
The reasons cited included a fear of crime, which was an argument accepted by the High Court in its 4 July 2019 ruling which supported my request for those details, but with the names redacted. Of course, the fear of crime could not really be a valid reason to deny providing those details, given that on 1 July 2016 the PM disclosed all the details of the payment of $78.4 Million in legal fees to those attorneys involved in the Colman Commission. Those attorneys who were recipients of millions of dollars in Public Money as legal fees, continue to be seen in public, with no kidnappings or murders reported.
- Invaders’ Bay – In this episode, the Ministry of Planning issued a request for proposals (RFP) for the development of a 70-acre parcel of waterfront land in west Port of Spain. The timetable for responses was too short, only the Central Tenders Board had the standing to issue that RFP and the assessment rules were published one month after the closing date, which in itself renders the entire process voidable. The JCC and other civil society organizations – T&T Chamber of Commerce; T&T Manufacturers’ Association and the T&T Transparency Institute – challenged that process and the Minister sought legal advice in response. The Minister, Dr Bhoendradatt Tewarie, informed us that the legal advice had supported the Ministry’s course of action, but refused to disclose that advice, citing legal professional privilege. The JCC requested those advices under the Freedom of Information Act, winning at both the High Court and Appeal Court levels.
The State has now appealed to the Privy Council, given the importance of this issue of legal professional privilege being invoked by a public body in such a case. I had checked this before via the Privy Council’s website and certain attorneys but had no confirmation that an appeal had been filed in the limited time allowed. My previously published position that the process had ended, and the details needed to be released was an error I can now acknowledge, having now had the Privy Council confirm the position to me directly via email.