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Chandresh Sharma V Lenny Saith

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Chandresh Sharma V Lenny Saith REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE H.C.A. NO. 991 OF 2005 IN THE MATTER OF AN APPLICATION BY CHANDRESH SHARMA OPPOSITION MEMBER OF PARLIAMENT FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO THE PROVISIONS OF THE JUDICIAL REVIEW ACT 2000 AND IN THE MATTER OF THE CONTINUING OMMISSION, FAILURE BY AND/OR REFUSAL OF THE MINISTRY OF PUBLIC ADMINISTRATION AND INFORMATION TO PERFORM HIS STATUTORY DUTY UNDER SECTION 40 OF THE FREEDOM OF INFORMATION ACT (“FOIA”) IN THE UNREASONABLE AND/OR IMPROPER INACTION ON THE PART OF THE SAID MINISTER TO PERFORM HIS STATUTORY DUTY UNDER THE SAID SECTION 40 OF THE FOIA BETWEEN CHANDRESH SHARMA APPLICANT AND DR. LENNY SAITH MINISTER OF PUBLIC ADMINISTRATION AND INFORMATION RESPONDENT ************************ JUDGMENT Page 1 of 22 Before the Honourable Mr. Justice V. Kokaram Appearances: Mr. Anand Ramlogan, Ms. J.Kublalsingh, and Mr. N Lalbeharry, instructed by Mr. S. Ramnanan and for the Applicant Mr. Fyard Hosein S.C. and Ms. Bridgemohansingh for the Respondent 1. INTRODUCTORY FACTS Before the Court is an application for judicial review filed on 1st June 2005 involving an aspect of the Freedom of Information Act (FOIA). It involves the obligation of the Minister of Public Administration and Information, the Respondent, to prepare a report on the operation of the FOIA for any and/or all of the years of 2001, 2002, 2003 and 2004 and cause a copy of same to be laid before each House of Parliament pursuant to section 40 of the FOIA.1 Mr Chandresh Sharma, the Applicant, acting in his capacity as a citizen of Trinidad and Tobago, Opposition Member of Parliament and taxpayer, wrote the Respondent by letter dated 16th February 2005 making the following inquiries: “I write in my capacity as a citizen, Opposition Member of Parliament and taxpayer. As you are aware, the Freedom of Information Act (“FOIA”) was passed by the United National Congress with the aim of ensuring transparency in the conduct of government and integrity in public administration. Your party, the People National Movement (“PNM”) held power for some thirty(30) years (1956-1986) and during that time citizens were unable to properly participate in the process of governance or scrutinize government action because 1 The full text of section 40 of the FOIA is set out below in Appendix 1 Page 2 of 22 they did not have a legal right to access information in the manner provided for by this Act. The FOIA therefore represents a revolution in the concept of participatory democracy. It will allow and encourage citizens to scrutinize the performance of public officers and deter abuse of power and corruption. “I have received numerous complaints from my constituents that the benefits of the FOIA are being systematically frustrated and undermined by your administration. The complaint is that the large majority of public authorities have not complied with the requirement of Part II of the Act. My research has indeed substantiated these claims. I note that under Section 40 of the FOIA you are supposed to “prepare and report on the operation of this Act” to each House of Parliament. According to my records that you have never done so and no reason or explanation for this inaction has ever been given. The report to Parliament is to be provided “as soon as practicable after the end of each year” and I write to make the following specific inquiries:- (1) Whether you have ever laid a report in Parliament concerning the operation of the FOIA? (2) Whether you intend to do so for the year 2005, and if so, by when? (3) The reason(s) if any, for your neglect of this public duty to report on this important matter; This matter is of some urgency because my constituents are being deprived of their rights. Furthermore, as an Opposition MP, the legal right to access government information is crucial to the proper performance of my duties.”2 Page 3 of 22 1.3 The Respondent responded by letter dated 25th February 2005 stating: “Thank you for your correspondence of February 16th, 2005 on the subject at caption. I am pleased to inform that the Ministry of Public Administration and Information has prepared an annual report on the operation of the Freedom of Information Act, 2001 for the period 2001-2003. The report will be submitted to Cabinet shortly, and thereafter laid in both Houses of Parliament, pursuant to Section 40 of the Act. In response to your inquires, I wish to indicate that the re- organization of portfolios during the period under review posed a challenge to the reporting exercise required for the collection of relevant data for this report. Further details pertaining to the overall implementation and monitoring of the Act are captured in the Annual Report to be laid in Parliament in the coming weeks.”3 1.4 Mr. Sharma however persisted in his request for the 2004 report. By letter dated 15th March 2005 he wrote the Respondent: “While it is commendable that you will now lay annual reports for 2001 to 2003 I wish to know whether you intend to lay a report for 2004 and if so by when”.4 1.5 There was no response by the Respondent to this request and the Applicant subsequently instituted these judicial review proceedings on June 2005. 1.6 As at the date the Applicant obtained leave to apply for judicial review on 1st June 2004 the Respondent had not yet laid before Parliament any reports on the operation of the FOIA pursuant to section 40 for the years 2001, 2002, 2003 and 2004. 2 See exhibit C.S.1 annexed to the affidavit of the Applicant sworn on 1st June 2005 3 See exhibit CS2 Page 4 of 22 1.7 These reports however were completed and laid before both Houses of the Parliament in October and November 2005 prior to the hearing of the application for judicial review and incidentally making good of its promise in its letter dated 25th February 2005. 1.8 There has been no complaint made to this Court as to the contents of these reports and indeed it is accepted that the Applicant has embraced them. Nevertheless the Applicant persisted with its application seeking certain declaratory relief with regard to the obligations of the Minister under section 40 of the FOIA. 2. THE APPLICATION: 2.1 By order of the Honorable Mr. Justice Best dated 8th June 2005, leave was granted to the Applicant to apply for judicial review pursuant to the Judicial Review Act 2000 for the following relief: (b) An order of mandamus directing the Respondent to prepare a report on the operation of the Freedom of Information Act for any and/or all of the years: 2001, 2002, 2003 and 2004 and cause a copy of same to be laid before each House of Parliament in accordance with section 40 of the Freedom of Information Act. (c) A declaration that the said Minister has acted illegally and/or in breach of section 40 of the FOIA. (d) A further declaration that the said Minister has been guilty of unreasonable delay in the performance of his statutory duty under section 40 of the FOIA.” 2.2 The grounds of review advanced by the Applicant in challenging the omission and/or delay of the Respondent included inter alia that the omission or failure of the Respondent to act was contrary to law; an abuse of power; in conflict with the 4 See exhibit CS3 Page 5 of 22 policy of the Act; breach of a duty or omission to perform a duty and that the delay of the Respondent was unreasonable.5 3. DEVELOPMENTS POST APPLICATION FOR LEAVE: 3.1 As noted in the summary of the facts above, certain developments took place subsequent to the order granting leave to apply for judicial review which are material to the outcome of this application. 3.2 Donna Ferraz, Acting Director of the Public Service Transformation Division of the Respondent deposed in her affidavit of 13th October 2005, that the reports on the operation of the FOIA for the period February 20 2001 to December 31 2003 were laid before both Houses in Parliament in June 2005 (just over a week after the Applicant obtained leave to apply for judicial review and before the first date of hearing of this application of 4th July 2005). 3.3 For convenience, the relevant dates are as follows. The report on the operation of the Act during the years 2001, 2002 and 2003 were laid before both Houses of Parliament by 17th June 2005. The report on the operation of the Act during these years were contained in one document which clearly identified the Respondent’s report on the operation of the Act within the relevant years. 3.4 The report on the operation of the Act during 2004 was laid before both Houses of Parliament by 16th November 2005 as promised by Ms Ferraz. See paragraph 12 of her affidavit. 3.5 Attorney-at-Law for the Applicant conceded that a report to be published pursuant to section 40 of the Act should for the latest be published before the end of the year subsequent to the year that is the subject of the report. This being the case there can be no legitimate complaint with regard to the publication of the 2004 report in November 2005. 5 See paragraph 4(6) of the Applicant’s Statement Page 6 of 22 3.6 The Applicant’s main concern therefore really is over the failure of the Respondent to publish the reports for the years 2001 to 2003 as soon as practicable after the end of those years.
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