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.
The previous articles, here and here, delved into the meaning of counterfactuals, those being baseless claims, hypotheses or beliefs. In those cases, I dismantled the dishonest discourse of some of our thought leaders, who should certainly know better. The prior examples were rooted in the sobering racist beliefs expressed by too many educated and responsible people, that is my view.
This week I continue my Season of Reflection by delving into the almost-forgotten Tobago Sandals MoU litigation which forced publication of that important document. This article will be dealing with the issues relating to the legal fees paid in that matter, so it does not repeat the points in the MoU or anything like that.
Afra Raymond was interviewed by Ralph Maraj on i95.5 FM on Tuesday, 16 July 2019 about the Freedom of Information Act in Trinidad and Tobago in light of Mr Raymond’s win in court to get further information in the CL Financial bailout. Following on from that victory, he also discusses research conducted on public housing using information gleaned from prior Freedom of Information requests. Video courtesy i95.5 FM
Programme Length: 00:42:43 Programme Date: 16 July 2019
“…3. (1) The object of this Act is to extend the right of members of the public to access to information in the possession of public authorities…”
—Objects statement in FoIA
“…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…”
—PM Dr Keith Rowley at the post-Cabinet press briefing on 23 May 2019.
Afra Raymond appeared on CNC3’s The Morning Brew with host Hema Ramkissoon on Monday 10 June 2019 to discuss the proposal to amend the Freedom of Information Act (FOIA). The FOIA has been an instrumental piece of legislation in the quest for transparency and accountability in governance. Any amendments to this act necessarily affect this process. Video courtesy CNC3 Television
Programme Length: 00:27:04 Programme Date: Monday 10 June 2019
“…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 –
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…”
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…”
“…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…”
That 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.
This event was organised by Disclosure Today to make two awards for Civic Entrepreneurship to former AG Ramesh Lawrence Maharaj SC and Afra Raymond. Maharaj received his award for his outstanding work in creating effective laws which advance the fight against White Collar Crime and promote the Public Goods of Transparency, Accountability and Good Governance. Those laws were the Freedom of Information Act; the Judicial Review Act; the Proceeds of Crime Act; the Prevention of Corruption Act. Raymond was given an award form his successful litigation under the Freedom of Information Act in landmark cases. It was held at La Boucan in Trinidad Hilton Hotel and Conference Centre. Video courtesy Disclosure Today
Programme Date: 16th May 2015 Programme Length: 02:51:25
Radio station Power 102.1 FM hosted an all day retrospective discussion on the burning issues of 2018 on Wednesday 19th December 2018. Host Andy Johnson speaks to Afra Raymond on his main issue, being the two successful challenges to the State to get information in the public interest, namely, the memorandum of understanding between the State and the Sandals Hotel group for the construction of a resort in Tobago and the details of the CL Financial bailout. They are joined by David Abdullah. Audio courtesy Power 102.1 FM
Programme Date: 19 December 2018 Programme Length: 00:33:40
— Winer, Lise. Dictionary of the English/Creole of Trinidad & Tobago: On Historical Principles. (Montreal: McGill-Queens University Press, 2008) p. 758
Many years ago, in an earlier life, I was taught about the perils of the short-lived ‘remou’ and that word snapped back into my mind when considering the current position with this Sandals MoU, in which all points are supposedly open for discussion. That stated position of no signed contracts will be the subject of this article. So many eminent people and responsible institutions were involved in this matter, that it is unfathomable how our Government could have signed that Sandals MoU on 10th October 2017.
My campaign to have that MoU made public got this far due its clear focus on the provisions of the Freedom of Information Act (FoIA) and the ‘Underlying Commercial Arrangements’, which are never discussed in public. The decisive element in the complicated process of creating these large-scale projects is intentionally kept from public view, by agreement. Our national assets are traded and degraded for decades, after the sheer outrage of colonialism, with the new leaders relying on the cultivated economic and financial illiteracy of our citizens. Continue reading “Property Matters – The Sandals Re-MoU”→
Afra Raymond was at the Scarborough Public Library in Tobago on 13 December 2018 to speak on his successful Freedom of Information request to see the Memorandum of Understanding between the T&T government and the Sandals Group to develop and run a Sandal/Beaches resort in Tobago. His analysis of the MoU was discussed and Q&A followed.
Programme Date: 13 December 2018 Programme Length: 01:40:58