FROM now on, anytime a state agency decides to resist a request under the Freedom of Information Act (FOIA), it must receive the sanction of the Office of the Attorney General.
Prime Minister Dr Keith Rowley announced the new policy at the post-Cabinet news conference in St Ann’s yesterday as the financial costs and the political embarrassment involving several FOIA matters continue to mount.
State agencies have been making their own decisions on these requests, and without reference to the Cabinet.
But the Prime Minister said these decisions were resulting in “unnecessary liabilities” to the state and substantial financial costs to the taxpayers, when the decisions are challenged in court and the State agency loses.
“When that happens the net loser is the taxpayer because there are lawyers who, this is a money-making thing for them. Whenever there is a no (to an FOIA request), the lawyer smiles, he/she runs to the court and most times the court would say give them the information. Because outside of national security matters and matters of the Cabinet...there are few other matters on the government files, that should really be secret,” the Prime Minister said.
There were two recent instances where on Monday the Privy Council ruled in favour of UNC activist Ravi Balgobin Maharaj on an FOIA request to Petrotrin involving the Petrotrin/GTL arbitration. Then yesterday the High Court ruled in favour of former Central Bank Governor Jwala Rambarran on an FOIA request to the Minister of Finance.
With respect to the Petrotrin issue, Rowley, in a directive that would forestall judicial review hearing made possible by Monday’s Privy Council ruling, said: “I am instructing the Minister of Energy to use the authority that he has under the Constitution to instruct Petrotrin to make the two witness statements, the same thing that went to the Privy Council, that they (the UNC) claim is the smoking gun, available and public, so that the public can read them and determine whether Malcolm Jones can rest in peace,” the Prime Minister said.
“Because of the way these matters have become a cash cow for those are exploiting it...as head of the Government...and with responsibility for the protection of the public purse, I intend to ask the Attorney General to put a circular through the government system, where all government officials who find themselves in a position to deny a request with respect to the Freedom of Information Act, they must inform the office of the Attorney General so that they can be guided,” the Prime Minister said.
The Prime Minister cited a case involving the Ombudsman, where an FOIA request to the Ombudsman was denied and after the matter was taken to court and the Ombudsman lost, the legal costs put in by the person’s attorney was over $1 million.
Rowley said the Cabinet is usually unaware when a State agency denies an FOIA request and may only know after it appears in the newspapers or when someone has sued and an adjudication has been made in their court.
He noted that in the case of Petrotrin, the State company received “high quality, high class and expensive legal advice” which indicated that the information being sought (via FOIA) was testimony from arbitration proceedings, which are usually confidential.
He said this had nothing therefore to do with the Government taking any position on Malcolm Jones or even Petrotrin.