In Maharaj v Petroleum Company of Trinidad and Tobago Ltd
[2019] UKPC 21, the Privy Council has handed down judgment in the first
consideration of the Freedom of Information Act 1999 of Trinidad and Tobago.
Unlike the Freedom of Information Act 2000 applicable in England and Wales, the
Trinidad and Tobago FOIA contains no absolute exemptions from disclosure, but
rather a general public interest override provision where the public authority
relies upon an exemption. Claims to vindicate rights under FOIA must be brought
by judicial review.
The context in Maharaj concerned a request for
witness statements provided in arbitration proceedings between Petrotrin – a
State-owned oil and gas company – and a commercial business partner, following
the collapse of a multi-billion dollar joint venture. Those statements were relied
upon by the Board of Petrotrin and the Attorney General of Trinidad and Tobago
as part of the rationale for the withdrawal of a claim for negligence and
breach of fiduciary duty brought by Petrotrin against its former Executive
Chairman, seeking damages of some US$97m. The claim had been brought prior to a
change in Government in Trinidad and Tobago, and the new Government had
appointed Mr Jones to an advisory post. The withdrawal of the claim before
trial, and payment to Mr Jones of his costs of the proceedings, had caused
considerable public comment and Mr Maharaj had made the request for the
underlying documents relied upon in order to scrutinise the reasoning upon
which the decision to withdraw was purportedly based.
Petrotrin relied upon the confidentiality which attaches to
documents produced in arbitral proceedings and asserted that there was no
sufficient public interest which overrode that confidentiality to engage the
right of access under FOIA.
At an oral hearing considering permission, the High Court of
Trinidad and Tobago refused Mr Maharaj permission to pursue his claim for
judicial review. The Privy Council unanimously overturned that refusal of
permission, holding that the claim that the public interest override was
engaged to favour disclosure was (at least) arguable and had a realistic
prospect of success, in the light of the factual circumstances and the absence
of any consideration on the part of the lower courts of the respective public
interest factors.
The judgment of Lord Sales also contains an interesting
summary of the different strands of the case law in Trinidad and Tobago as to
the proper standard to be applied by the courts in a judicial review under
FOIA.
The judgment of the Board may be read here.
Christopher Knight acted for Mr Maharaj, led by Richard
Clayton KC and Anand Ramlogan SC.
