Privy Council Appeal No 22 of 2008
|The Honourable Patrick Manning and 17 Others||Appellant|
THE COURT OF APPEAL OF THE REPUBLIC OF TRINIDAD AND TOBAGO
REASONS FOR DECISION OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE 3rd June 2009, Delivered the 3rd August 2009
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Sir Jonathan Parker
[Delivered by Lord Scott of Foscote]
"(a) making available to the public information about the operations of public authorities ....; and
(b) creating a general right of access to information in documentary form in the possession of public authorities
Subsection (2) of section 3 is of some relevance to some of the submissions made both to the courts below and to the Board:
"The provisions of this Act shall be interpreted so as to further the object set out in sub-section (1) and any discretion conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable costs, the disclosure of information."
"a body corporate or unincorporated entity -
(i) in relation to any function which it exercises on behalf of the State;
(ii) which is established by virtue of the President's prerogative, by a Minister of Government in his capacity as such or by another public authority;
(iii) which is supported, directly or indirectly, by Government funds and over which Government is in a position to exercise control."
The "public authority" definition, read as a whole, demonstrates the intention of the legislators that the efficacy of the substantive provisions of the Act to enable citizens of Trinidad and Tobago to have access to information in the possession of public authorities should not be frustrated by executive manoeuvres.
(a) cause to be published in the Gazette and in a daily newspaper circulating in Trinidad and Tobago as soon as practicable after the commencement of this Act -" (emphasis added)
a number of statements. The types of statement, specified in eight sub-paragraphs, are clearly designed to cover comprehensively the sort of information that a public authority is likely to, or does, possess.
"(b) during the year commencing on 1st January next following the publication, in respect of a public authority, of the statements under paragraph (a) that are the statements first published under that paragraph, and during each succeeding year, [the public authority shall] cause to be published in the Gazette and in a daily newspaper circulating in Trinidad and Tobago statements bringing up to date the information contained in the previous statements."
"Where a statement has not been published in accordance with subsection (1), the Minister shall promptly give reasons, to be published in the Gazette, for the failure to publish."
The "Minister" on whom this statutory obligation is placed is the Minister "to whom responsibility for information is assigned" (s.4).
"directing the Respondents to publish within 7 days the reasons for the continuing failure and/or refusal by the public authorities for which they are responsible to comply with the provisions in Part II of the [1999 Act]"
"a declaration that the continuing omission, failure of and/or refusal by the Respondents to perform their statutory duty under section 7(4) of the [1999 Act] is illegal and unlawful".
"if it considers that there has been undue delay in making the application and that the grant of relief would cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration."
She combined her consideration of the delay point with a point made on behalf of the Government as to when it was that the public authorities that had failed to publish the requisite section 7(1)(a) statements had become in breach of their statutory obligations to do so. The Government had apparently contended that no evidence had been produced to show when it was that it had become "practicable" for the public authorities to publish the statements. This appears to their Lordships to be a thoroughly specious point. Section 7 had become part of the law of Trinidad and Tobago on 30 April 2001. The judicial review proceedings had been commenced on 1 March 2005, nearly four years after Part II had come into effect. In his affidavit sworn on 1 March 2005 in support of his application Mr Sharma said that he had been charged by the Opposition with the responsibility for monitoring the implementation and operation of the Act and had "conducted extensive research on this matter". He gave the names of the organisations that he said were public authorities for the purposes of the Act and said that, of those, only thirty-seven had attempted to comply with section 7(1)(a) and none of the thirty-seven had complied with section 7(1)(b).
"The publication of the reasons for non-compliance of the public authorities will not in my opinion provide any greater access by members of the public to information in the possession of these public authorities. The fact that it is a responsibility placed on the Respondents as Ministers of the Government does not, to my mind, make the duty one of great public importance. In my opinion, this is not such a matter of public importance as to found an extension of time for its application for leave to apply for judicial review."
"The passage of such a long span of time from the coming into force of section 7 to the date of the application raises the inference that the statements must have been capable of being published well before the application for leave and that the obligation of the Minister under section 7(4) must have arisen".
Their Lordships agree.
In paragraph 21 the Justices of Appeal express the opinion that
"a prima facie case of neglect under section 7(4) arises on the evidence requiring an answer from the [Government]".
Their Lordships share that opinion.