……Judge: “It would also turn FOIA into a bear trap”
By FRANCIS JOSEPH
Former Government Minister Devant Maharaj has lost a six-year judicial battle against the National Gas Company (NGC).
The Judicial Committee of the Privy Council, in a 24-page judgment, on Tuesday, dismissed the appeal brought by Maharaj which started in December 2019.
The appeal was heard before Lord Hodge, Lord Lloyd-Jones, Lord Sales, Lord Hamblen, and Lord Stephens.
Madame Justice Avason Quinlan-Williams first dismissed the judicial review application. The Court of Appeal, by a 2-1 majority, also dismissed the appeal. Ruling against Maharaj were Justices Nolan Bereaux and Peter Rajkumar, while Justice Ronnie Boodoosingh, now Chief Justice, dissented.
The Case
So what was the issue before the Privy Council?
Q: What is the proper approach to the public interest balancing exercise required by section 35 of the Freedom of Information Act (the FOIA) where an applicant has requested disclosure of information from a public authority and the public authority considers there to be an applicable exemption?
Facts
On the 18th of December 2019, Maharaj made 12 requests under the FOIA for the disclosure of various documents relating to the proposed construction of a nine-kilometre natural gas pipeline between the offshore Dragon natural gas field in Venezuela and the Hibiscus natural gas platform in Trinidad and Tobago.
These included, for example, documents relating to the costs, economic viability, environmental impact, legal consequences and other details of the project. On the 6th of February 2019, NGC rejected the requests, either by citing certain exemptions under the FOIA, in particular sections 36, 29, 31 and 33, or explaining that the requested documents did not exist.
Maharaj challenged the rejection by way of judicial review, arguing that section 35 of the FOIA required NGC explicitly to consider whether access to the documents was justified in the public interest, having regard to any benefit or damage that may arise from such disclosure.
The High Court dismissed Maharaj’s claim for judicial review. The Court of Appeal (by a majority of two to one) dismissed Maharaj’s appeal, as well as a cross-appeal by NGC by which it argued that it was not a “public authority” for FOIA purposes. Maharaj then appealed as of right to the Judicial Committee of the Privy Council.
In the ruling on Tuesday, Lord Sales said, “Although the judge rightly adopted a review approach, she erred in applying it. There plainly were public interest factors pointing in favour of disclosure of the documents in categories 1, 4, 8 and 12, as identified by the appellant (Maharaj) in the 18 December Page 22 request and by all members of the Court of Appeal.
“The judge was wrong to say that there were no such factors. The Court of Appeal were right to criticize the judge’s reasoning on those grounds and to proceed to make their own assessment, following a review approach.
“The Board agrees with the reasoning of the majority in the Court of Appeal in the main part of the lead judgment of Justice Rajkumar. Applying a review approach, as is appropriate, the Board agrees with the majority in the Court of Appeal that it cannot be said that in the circumstances of this case the decision arrived at by NGC after taking all the relevant factors into account was irrational or unlawful in any way.
“Accordingly, the Board does not accept Mr (Anand) Ramlogan’s submission to the effect that a public authority has to imagine every possible aspect of the public interest which might bear on the question of disclosure and consider that as part of the balancing exercise, on pain of being caught out if the applicant for disclosure comes along later and points to some other public interest matter which was not obvious and was not considered by the public authority when it took its decision.
“To adopt such an approach would make a public authority’s obligation of consideration under section 35 excessively onerous, contrary to Parliament’s intention. It would also turn FOIA into a bear trap for public authorities and encourage undue amounts of litigation around what is supposed to be a straightforward and easy to apply regime.
“For the reasons given above, the Board dismisses the appeal,” Lord Sales added.
