Judge declares, auditor general’s department a ‘public authority’ under FOIA

The content originally appeared on: Trinidad and Tobago Newsday

Justice Kevin Ramcharan. –

A HIGH COURT judge has declared the auditor general’s department is a public authority under the Freedom of Information Act.

This is the second judgment, in as many weeks, by the local courts relating to state bodies being deemed public authorities for the purpose of the FOIA.

On Friday, Justice Kevin Ramcharan declared that the auditor general’s department was a public authority under the FOIA and was required to provide a former human resource officer at the Port of Spain City Corporation, and any other person, with non-exempt documents asked for in a request under the act.

In his ruling, Ramcharan said, “There can be no doubt that the defendant is acting on behalf of the State in the sense that it is acting in the interest of the State.

“Section 4(k)(i) of FOIA therefore applies and the defendant is a public authority under the act.”

Joan Chee, who retired from the corporation in 2019, requested from the corporation several documents and information on policies after she did not get any update on the processing of her file for gratuity and pension.

She also wanted to know the steps to be followed by the auditor general’s department for retired public officers from the corporation to receive their gratuity and retirement benefits.

The department provided responses to Chee but also said it was not a public authority under the FOIA based on a legal opinion from the solicitor general, dated February 2003.

Chee filed a judicial review claim in April 2021, but died in June, this year, before she could receive judgment.

In 2017, Chee was successful in litigation against the Statutory Authority Service Commission after she was bypassed for promotion and the corporation failed to pay gratuity after 40 years of service.

In his ruling, Ramcharan while Chee had received the documents she requested, the case concerned the construction of “public authority” under the FOIA.

“It is not simply the provision of information allowed under the FOIA but that which is afforded by public authorities in particular which the defendant disputes that it is.”

He also said there was “much to be gained” by the court providing advice to the department for dealing with future FOIA applications.

The judge said while the Constitution shielded the office of the auditor general from the direction or control of any person, as it related to the exercise of its functions, that independence “did not necessarily render the Auditor General” not a public authority.

“Parliament would not have intended section 116(6) to allow for the Auditor General to be free from being held accountable.

“The fact still remains that after his functions have been performed, the Auditor General is obligated to submit reports to the Speaker, President of the Senate and the Minister of Finance which is also provided for in the Constitution under section 116(4).

“Following this said obligation to send reports to the Minister of Finance, as contained in the Constitution, the Exchequer and Audit Act provides for what the Minister may ask of the Defendant,” the judge said.

“Undoubtedly the functions of the Auditor General are public in nature,”he added.

“There can be no doubt that the defendant is acting on behalf of the State in the sense that is acting in the interest of the State.

“Section 4(k)(i) of FOIA therefore applies and the defendant is a public authority under the Act,” he ruled.

Chee was represented by Anand Ramlogan, SC, Jayanti Lutchmedial, Renuka Rambhajan, and Alana Rambaran while the Auditor General was represented by Reginald Armour, SC, before he became Attorney General in March; Raphael Ajodhia, Kezia Redhead and Tiffany Kissoon.

Last week, the Court of Appeal also declared that TSTT was a public authority under the FOIA.