Court rules TSTT a public authority subject to FOIA

The content originally appeared on: Trinidad and Tobago Newsday

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The Telecommunication Services of Trinidad and Tobago (TSTT) is a public authority that is subject to the provisions of the Freedom of Information Act (FOIA), the Court of Appeal has ruled.

In a decision on Friday, Justices of Appeal Alice Yorke-Soo Hon, Gregory Smith, and Malcolm Holdip dismissed the appeal of TSTT against a judge’s decision declaring the company a public authority within the meaning of the FOIA.

In December 2018, Justice David Harris also declared that TSTT, as a “public authority” under the act, was subject to its provisions.

His declarations were made as he ruled in favour of a claim filed by social activist Ravi Balgobin-Maharaj who, two years earlier, unsuccessfully filed a freedom of information request for information on TSTT’s executive management and their salaries; the stipend paid to directors; an unedited copy of the original shareholders’ agreement between Cable and Wireless and TSTT; and an unedited copy of the deed of adherence signed by the National Enterprises Ltd (NEL).

The judge had been asked to determine if TSTT was owned by or controlled by the State.

TSTT’s contended the company was neither “owned” nor “controlled” by the State; was not supported by government funds; and was not a public authority. Because of this, it argued it could not provide Balgobin-Maharaj with access to the information he requested. It also contended that TSTT was owned by NEL, a private limited company whose shares were substantially held by the Government.

In his order, Harris quashed TSTT’s decision to deny access to the documents Balgobin-Mahara requested and granted an order to compel the company to reconsider the request.

In the ruling, written by Smith, the judges said since the change of status of TSTT, now that there are no Cable and Wireless directors, all the members of the board of TSTT are, according to the Gazette, the representatives of the Government.

“That being the case, the Government/State, through its power to have its own representatives or nominees comprise the entire board of TSTT, is in effective control of TSTT. “

The Appeal Court judges had been asked to ignore the contents of the Gazette, as it was not put in evidence before Harris or at the Court of Appeal in written submissions, but had been brought up during discussions at the hearing in April. When they reserved their ruling, the judge had asked for further submissions on a gazetted announcement of the Cabinet’s appointment of the new chairman of the board and the Government’s representatives.

“It must be mentioned that the Gazette serves as official notification on behalf of the State and a court, in our opinion, can take judicial notice of its contents.

“It is, in our view, a de jure (legally recognised) source we can consider in deciding on the question of who is in effective control of TSTT,” Smith said.

He declared, “TSTT, at present, is, therefore, a public authority that is subject to the provisions of the FOIA as it is a ‘company incorporated under the laws of Trinidad and Tobago which is… controlled by the State.’”

Smith noted the present position could change, taking TSTT out of the definition of public authority, citing examples of how this can happen.

“Government may divest itself of all or the greater part of its majority shareholding in TSTT or may re-vest the appointment of the board in another party or other parties.

“Who knows what the future holds? In such an eventuality, TSTT may cease to be under the control of the State and may not be a public authority under the FOIA.

“However, at present, as is evident from the information in the TT Gazette, the Government/State is in effective control of TSTT and it is a public authority for the purposes of the FOIA. As such, TSTT must give active consideration to the respondent’s request for information and documents.”

TSTT was represented by Dr Claude Denbow, SC, Jerome Rajkumar and Donna Denbow. Representing Balgobin-Maharaj were Anand Ramlogan, SC, Jayanti Lutchmedial and Dr Che Dindial.