In the High Court of Justice. Between. Devant Maharaj. And. The Ministry of Local Government

Transcription

1 Trinidad and Tobago In the High Court of Justice Claim No. CV Between Devant Maharaj Applicant And The Ministry of Local Government Respondent Before The Honourable Mr. Justice Devindra Rampersad Appearances: Mr. A. Ramlogan instructed by Ms. C. Bhagwandeen for the Plaintiff Mr. K. Douglas and R. Singh instructed by Ms. M. Ramdass for the Defendant Delivered on the 1 st day of April 2010 JUDGMENT THE APPLICATION: 1. The application before this Court was one made ex parte for leave to apply for judicial review filed on 3 December 2008, and was supported by the affidavit of the applicant sworn to on even date. It was thereafter ordered by Smith J. that the application for leave be heard as an inter partes application on 15 December Page 1 of 13

2 2. Broadly speaking, the applicant herein challenges the omission and/or continuing failure and/or refusal of the Respondent in providing to him, pursuant to the Freedom of Information Act Chap. 22:02 (hereinafter called the FOIA ), certain requested information relative to the Unemployment Relief Programme for the period Consequently, the applicant claims the following reliefs: 3.1. An Order of mandamus to compel the Respondent to provide the Applicant with the documents/ information requested in his application made under the provisions of the Freedom of Information Act dated 16 th March, A declaration that the applicant is entitled to the documents/ information set out in the application A declaration that the continued failure and/ or refusal by the Defendant to give the applicant access to the information/ documents requested at numbers 1-10 of his application made under the FOIA dated 16 th arch 2006 is illegal and amounts to a breach of the provisions of the FOIA An Order directing the Respondent to provide the Applicant with the requested documents/ information free of charge within seven (7) days hereof A declaration that there has been unreasonable delay on the part of the Respondent in providing the requested information Costs Pursuant to section 8 of the Judicial Review Act 2000, such further orders, directions or writ as the Court considers just and as the circumstances warrant. BACKGROUND: 4. The Ministry of Local Government (the Respondent), is a Public Authority within the meaning of section 4 (d) 1 of the FOIA. 1 S. 4 of the FOIA: public authority means- (d) a Ministry or a department or a division of a Ministry. Page 2 of 13

3 5. The applicant by application dated 16 March 2006 requested the following information/ documents from the Local Government pertaining to fiscal years 2003/04, 2004/05; 2005/ 06: 5.1. Total amount allocated for the Unemployment Relief Programme (URP); 5.2. Total actual expenditure of the URP Total amount committed by the URP for the fiscal 2005/06 to date Total amount of URP projects undertaken Total number of URP projects completed Total costs of URP projects undertaken Total costs of labour of URP projects undertaken Total cost of material of URP projects undertaken Total of any other costs together with a description of each cost for URP projects undertaken For each URP project undertaken during said period, documents stating: Location/ Address of same Name of Parliamentary constituency of each Labour cost of each of these projects Number of persons employed in each of these projects Criteria for selection of persons employed in each of these URP projects Nature of each of these projects (e.g whether road, drain project etc.) Criteria for selecting the location address of each of these URP projects Criteria for selection of the parliamentary constituency of each of these URP projects. 6. By letter dated 29 March 2006, the Respondent advised that the applicant s request was being addressed and that he would, in due course, be notified of its access decision. By Page 3 of 13

4 further letters dated the 27/6/06, 29/9/06, 12/1/07, 15/1/07, 24/7/07 and 18/4/08, the Respondent notified the applicant in a standard template form that the Ministry was in the process of preparing the requested information and that same would be submitted to the applicant by the 30/9/06, 31/1/07, 30/4/07, 4/4/07, 31/1/08 and 31/12/08 respectively. To date, the applicant has not been provided the requested information/ documents. This is despite, in addition, a pre-action protocol letter dated 20 October 2008, giving notice of the applicant s intention to apply for judicial review should a decision not be made on the applicant s request and/ or if the requested information/ documents are not provided 7. The said information and/or documents were requested for the specific purpose of addressing complaints as to bias with regard to preferential treatment in selections for the URP programme; the number of URP projects undertaken in PNM constituencies and the misuse and/ or misappropriation of funds through the URP programme. This information was apparently decisive of the question whether a constitutional motion could be sustained by the applicant on behalf of aggrieved members of the East Indian community- more specifically, the Indo Trinbago Equality Council, of which the applicant is President. 8. Indeed the applicant filed judicial review proceedings against the Respondent on 3 December some 2.6 years after the applicant s request. The core of the Respondent s objection to the instant application is premised on the argument that the applicant has, to use the somnolent phraseology, slept on his rights and therefore, unduly delayed in commencing judicial review proceedings. 9. In response, the applicant has asserted that the failure of the respondent to provide the requested information was a continuing illegality which, fell outside the bar of delay in the first place. In the alternative, if there has been delay, there is good reason to grant an extension of time, and in further alternative, leave is not necessary for judicial review under the FOIA, as such application is brought as of right. THE ISSUE: Page 4 of 13

5 10. The Court considers that there really is only one very narrow issue for determination herein, viz, whether the Respondent can rely on its own delay in the circumstances of this case to oust a grant of leave to apply for judicial review. THE LAW: Preliminaries 11. Under section 5 (1) of the Judicial Review Act (2000) Chapter 7:08 (hereinafter called the JRA 2000 ), judicial review lies against a person acting in the exercise of a public duty or function- a prerequisite in which the Respondent has fully conceded its role. It is trite that leave to apply for judicial review must first be obtained 2, and the general rule is that the Court will refuse such leave unless it is satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v. Legal Aid Board, exp. Hughes (1992) 5 Admin LR 623, The rationale behind the requirement of leave for judicial review lies in the facilitation of a judicial filtering of hopeless or groundless cases. As Lord Diplock stated in Regina v. Inland Revenue Commisioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 at 643, the purpose of the requirement for leave to be granted is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left 13. The threshold at this stage is as set out by the Privy Council in the case of Privy Council Appeal No 75 of 2006 The Honourable Satnarine Sharma v. Carla Brown-Antoine & ors in the judgment of Lord Bingham of Cornhill and Lord Walker of Gestingthorpe where it was said at page 7 et al The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible 2 Section 6 of the JRA Page 5 of 13

6 in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, para 62, in a passage applicable mutatis mutandis to arguability: the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities. It is not enough that a case is potentially arguable: an applicant cannot plead potential arguability to justify the grant of leave to issue proceedings upon a speculative basis which it is hoped the interlocutory processes of the court may strengthen : Matalulu v Director of Public Prosecutions [2003] 4 LRC 712, It must be quite evident by now that the Respondent s opposition to the grant of leave is confined only to the question of delay. Hence there has been no objection to the sufficiency of interest of the applicant as regards his locus standi in this matter, nor has leave been opposed on the ground that the applicant has failed to establish an arguable case. 15. However, even in the absence of any challenge, this Court still has to determine whether the applicant has at least established an arguable case that merits detailed examination at the substantive hearing of the judicial review application. 16. The applicant is seeking review of the omission and/or inaction and/or continuing failure of the respondent to disclose certain information with respect to the Unemployment Relief Programme (URP) for the period In effect, he claims that the deprivation of said information severely cripples any informed assessment he may be able to make in order to determine whether there exists in the selection process under the URP, any discrimination against members of the East Indian Community, sufficient to mount a constitutional motion. I have examined the grounds upon which the applicant s claim for relief is based, and without being taken to be commenting on the merits or demerits thereof, I am satisfied that there is a case fit for further consideration at the substantive hearing of the review application. Page 6 of 13

7 17. Having determined that the applicant s case is an arguable one, I now have to determine the live question of delay in this application. THE ISSUE OF DELAY: The Law and Conclusion 18. Whether the Respondent can rely on its own delay in the circumstances of this case to oust a grant of leave to apply for judicial review? 19. For quick reference and ease of convenience, I have set out below a tabulated version of the dates the applicant requested the information from the Respondent, and the corresponding promised dates of response. Date of letter Promised date of response Request 16/03/06 Response 29/03/06 27/06/06 27/06/06 30/09/06 29/09/06 31/01/07 12/01/07 30/04/07 15/01/07 04/04/07 24/07/07 31/01/08 18/04/08 31/12/08 Pre Action letter 20/10/ The applicant s request for information was made on the 16 March In this regard, section 15 of the FOIA states: A public authority shall take reasonable steps to enable an applicant to be notified of the approval or refusal of his request as soon as practicable but in any case not later than thirty days after the day on which the request is duly made. Page 7 of 13

8 21. Pursuant to section 15, a response to the applicant s request was due therefore by the 15 April 2006 that was a Saturday so the actual deadline for the delivery of the response would have been the 17 April 2006: see section 25 (4) of the Interpretation Act Chapter 3: By letter dated 29 March 2006, the Respondent acknowledged receipt of the applicant s request and stated that same is being addressed and you will be notified of our access decision in due course. From the subsequent inaction of the respondent, it may be inferred that due course did not contemplate the 30 day deadline set by section 15 of the FOIA to notify the Applicant of the approval or refusal of his request, but rather amounted to an extension thereof. (It is to be noted that there is no provision in the FOIA for an extension of time for notification of the Applicant whether by consent or otherwise.) 23. By letter dated 27 June 2006, the Respondent agreed to provide the information wherein it was said: I refer to a letter to you dated March 29, 2006 on the above subject and to inform you that the Ministry is in the process of preparing the requested information. It is estimated that the exercise will be completed and submitted to you by September 30, 2006." [Emphasis mine] 24. The letter dated 27 June 2006 is some seventy-one (71) days after the expiry of the 17 April 2006 deadline prescribed by section 15. No objection or issue was taken in relation to this delay beyond the 30 day prescribed period. 25. I agree with the Honourable Aboud J. (Ag.) (as he then was) in the decision of Devant Maharaj v Statutory Authorities Service Commission HCA No. S of 2005 where he said, at paragraph 32 of his judgment: "The 30-day period does not amount to a deadline to provide the requested information. The public authority is only mandated to take reasonable steps to notify the Applicant whether his request has been approved or refused. This notification must be issued, in the language of the statute, as soon as is Page 8 of 13

9 practicable but in any case not later than 30 days after the day on which the request is made. In plain language, this means that the public authority has a maximum of 30 days to examine the request, determine whether any exemption applies or whether the supply ought to be deferred, and to notify the Applicant accordingly. A common misconception is that the information must be supplied within 30 days. This misconception has put undue strain on the staff of public authorities. Ideally, if circumstances permit, the public authority should approve the request and provide the information within 30 days. However, situations may arise where a request has been approved but due to the volume or location of the information it would take longer than 30 days to provide it. In such cases, the notification could approve the application but defer the supply in accordance with section 19. However, once it has been approved, and no deferment is claimed, then the authority is mandated by section 16 to forthwith supply the information. Every applicant is therefore entitled within 30 days to know whether his request has been approved or refused. The language of the section is very clear. Upon receipt of a FOIA request a public authority has to act with dispatch. It must carefully examine the request, determine whether the document is exempted under section 12 or part 1V, whether its provision should be deferred under section 19, whether the document would put undue strain on the authority to locate and supply it, and decide within 30 days whether the request is approved or refused. There is no third category of response. The statutory mandate is quite stark. There is no room for ambivalence. The public authority has no more than 30 days to make its determination. 26. The question, therefore, turns on what would be a reasonable timeframe for the provision of the information requested of the Respondent? 27. The information requested was quite extensive and is referred to in detail at paragraph 5 above. It amounted to 3 years of accounts i.e. for the fiscal years 2003/4, 2004/5 and 2005/6. The costs and the number of projects undertaken and completed with the respective labor, material and other costs for the said periods together with documents giving certain information including the criteria for selection of persons employed in the Page 9 of 13

10 projects, etc. formed the basis of the information sought. In those circumstances, it is quite reasonable to expect that the information would take some time to collate. What amounts to a practical time in such circumstances would really be anyone's guess as the state of the accounts and internal affairs relative to the Respondent are not known. The Respondent is best placed to make that assessment taking into account the availability and amount of resources necessary for the coordination, collation and provision of the information and therefore the Claimant was quite reasonable in relying upon the Respondent s requests for time. 28. It is in those circumstances that I have formed the respectful view that, in light of the seven (7) letters sent by the Respondent requesting time to provide the information, it seems to me to be quite odious for the Respondent to now claim that the Applicant has slept on his rights for approximately 2.6 years before commencing judicial review proceedings. Indeed the respondent was there referring to the stipulation in section 11 (1) of the Judicial Review Act 2000, that, An application for judicial review shall be made promptly and in any event within three months from the date when the grounds first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. 29. The decision to mount an attack in the courts is a very serious one. It is not one to be taken lightly and, to my mind, ought to be avoided as much as possible. There was no issue from the Respondent with respect to the provision of the information requested as on several occasions, it informed the applicant that the Ministry is in the process of preparing same. The only hindering factor to the provision of the information was time, in respect of which on each occasion, the Respondent set a deadline- unfortunately, each deadline kept on extending. Surely, the Respondent would have set its own deadlines bearing in mind its own commitments and resources. However, having not honoured any of the promised deadlines, the Respondent has in fact, accepted that a delay of 2.6 years in providing the said information may not be reasonable. 30. Therefore for the Respondent to now suggest that it ought not to provide the information which it agreed to provide because the Applicant did not commence judicial review proceedings promptly, seems unconscionable in the face of its own requests for time. Page 10 of 13

11 This Court finds it a very difficult proposition to accept that this Respondent has made such a submission in light of its own expressed position and the bona fides with which it ought to be presumed the respondent conducted its affairs with the applicant. In this regard therefore, I accept the Applicant's position that the Respondent ought not to be allowed to rely upon its own illegality to defeat the applicant's case. 31. The respondent made a further submission before this Court, which, at best, can be described as a final last ditch effort to save an already doomed defeat against the claim for leave. It submitted that because of the voluminous nature of the documents requested, the grant of leave would cause substantial hardship/prejudice and/or would be detrimental to good administration and that section 21 (1) of the FOIA should apply. Section 21 (1) provides as follows: A public authority dealing with a request may refuse to grant access to documents in accordance with the request, without having caused the processing of the request to have been undertaken, if the public authority is satisfied that the work involved in processing the request would substantially and unreasonably divert the resources of the public authority from its other operations and if before refusing to provide information on these grounds the authority has taken reasonable steps to assist the applicant to reformulate the application so as to avoid causing such interference. 32. There is no affidavit from the Respondent attesting to such an assertion nor is there any mention whatsoever of such an objection in any of the seven aforementioned letters sent to the applicant by the respondent. Such a submission is a bald and bold one based on absolutely no evidence whatsoever and seems to me to be a grasp at straws. Consequently, I reject it as a valid submission in opposition to this application. 33. In closing, I have noted the submission by the Applicant s attorney at law that applications for judicial review under the FOIA are of right and do not require an application for leave. I wish to just say that this point was raised in the case of CvApp 51 of 2005:- Chandresh Sharma v The Integrity Commission and Mendonca JA delivered an opinion which disagreed with this interpretation and which confirmed the need for leave under the FOIA. Despite intimations otherwise, that argument seems not to Page 11 of 13

12 have been canvassed before the Privy Council so that I cannot find favour with that submission at all. 34. As a result, I would grant leave to apply for judicial review and I would order that the Respondent pay the costs of the application to be assessed at the end of the proceedings. Order: 35. IT IS ORDERED that leave be and is hereby granted to the Claimant to apply for Judicial Review for the following relief: An application of mandamus to compel the Respondent to provide the Applicant with the documents/information requested in his application made under the provisions of the Freedom of Information Act dated 16th March, 2006; A declaration that the Applicant is entitled to the documents/information set out in the said application A declaration that the continued failure and or refusal by the Defendant to give the Applicant access to the information/documents requested at numbers 1-10 on his application made under the FOIA dated 16th March, 2006 is illegal and amounts to a breach of the provisions of the FOIA An Order directing the Respondent to provide the Applicant with the requested documents/information free of charge within seven (7) days hereof A declaration that there has been unreasonable delay on the part of the Defendant in providing the requested information Costs Pursuant to section 8 of the Judicial Review Act 2000, such further orders, directions or writ as the Court considers just and as the circumstances warrant. 36. The order granting leave is conditional on the Claimant making a claim for judicial review within 14 days hereof in accordance with Part 56 Rule (4) (11) of the Civil Page 12 of 13

13 Proceedings Rule, Both parties are to attend a case management conference, which is fixed for hearing on the 12 th day of May 2010 at 9:30 am in POS 20. Devindra Rampersad Judge (Ag.) Page 13 of 13