Devant Maharaj v The National Gas Company of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Rajkumar JA.,Boodoosingh JA
• Judgment Date: 30 April 2024
• Neutral Citation: TT 2024 CA 24
• Docket Number: CA. No. S275 OF 2020
• Court: Court of Appeal (Trinidad and Tobago)

Between

Devant Maharaj

Appellent

and

The National Gas Company of Trinidad and Tobago

Respondent

Panel:

Bereaux JA

Rajkumar JA

Boodoosingh JA

CA. No. S275 OF 2020

Claim No. CV 2019-02084

IN THE COURT OF APPEAL

APPEARANCES:

Mr. Anand Ramlogan S.C, Mr. Che N. Dindial, Mr. Ganesh Saroop

Mr. Russell Martineau S.C, Mr. Kerwyn Garcia S.C, Ms. Vishma Jaisingh

I have read the judgment of Rajkumar JA. I agree with it and I have nothing to add.

………………………………………………………………..

Nolan Bereaux

Justice of Appeal

Background

1 By letter dated 18 December 2018 the appellant made 12 requests for information (the requests) from the respondent under the Freedom of Information Act (FOIA or the Act). The requests were for documents relating to the proposed construction of a 9 kilometer natural gas pipeline between the Offshore Dragon natural gas field in Venezuela to the Hibiscus natural gas offshore platform in Trinidad and Tobago (the proposed gas deal, pipeline, or project)

2 The proposed pipeline would be for the purpose of accessing natural gas from Venezuela to be purchased by the National Gas Company of Trinidad and Tobago (NGC) for supply to its customers. NGC is the national gas company of Trinidad and Tobago and is responsible for both the purchase of natural gas from natural gas producers and the supply of natural gas to natural gas consumers. Its customers include the electricity company of Trinidad and Tobago (TTEC), Atlantic LNG, as well as many of the downstream industries at the Point Lisas Industrial Estate (Pt. Lisas) which use the gas as feed stock for production of products including, but not limited to, methanol and ammonia.

3 Natural gas is an extremely important component of the Trinidad and Tobago economy. In fact, it may well be the single most important product upon which the economy is based. (See affidavits of the respondent). This is essential background to the requests that have been made.

4 By letter dated 6 February 2019 (the access decision) the respondent replied in relation to the requests. Many of the requests were denied on the basis that the documents requested did not exist. This appeal does not concern those requests. It concerns four remaining requests. They are part of request number 1 – memorandum of understanding, request number 4 – a legal opinion, request number 8 – documents relating to costs of construction of the pipeline and request number 12 — the minutes of all meetings at NGC for the proposed gas pipeline.

5 Specific exemptions were claimed in the response by NGC in relation to those requests. No issue is being taken with respect to those statutorily permitted exemptions under the FOIA.

6 The appellant contends however that section 35 of the FOIA required the respondent to go further in that after claiming those exemptions it had to consider whether giving access to the documents was justified in the public interest (the public interest factors) having regard both to any benefit and to any damage that may arise from doing so (the balancing exercise).

7 The appellant claims inter alia that i) on the face of the access decision no such section 35 balancing exercise had been conducted, ii) it was not permissible to examine the affidavits of the respondent filed subsequent to the access decision to determine whether one had been conducted, iii) the trial judge erred in herself impermissibly conducting a section 35 balancing exercise, iv) that even if it were permissible to do so the respondent's references to section 35 in the access decision and its responses thereafter including its affidavits were not sufficient to satisfy the requirement that such an exercise had to be conducted as a matter of law, v) the access decision should therefore be remitted to NGC for reconsideration as it could not be conducted by the Court.

8 The respondent on the other hand claims inter alia that:

• i) It did conduct a section 35 balancing exercise, as revealed by the access decision on its face;

• ii) Its response was in relation to the appellant's request for information. That request itself set out the various matters that he contended weighed in favour of disclosure in the public interest, (public interest factors). Being responsive thereto it must necessarily be understood to have taken them into account.

• iii) NGC contended that the nature of that balancing exercise was further elaborated upon in affidavits from Verlier Quan-Vie, the Assistant Vice-President of NGC 1.

• iv) There was no requirement under the Act that the balancing exercise must be contained in extenso in the access decision itself. The Act did not prescribe the form or format of that exercise. Further, the absence for example of a table setting out the pros and cons of disclosure in the public interest was not relevant, in the face of the respondent's express assertion in the access decision that it had conducted that exercise with the public interest factors squarely before it, and to which it was responding.

9 This appeal therefore relates to whether or not in relation to the four requests as identified above, a balancing exercise under section 35 of the FOIA had been conducted, balancing the claimed exemptions and the right to refuse access based thereon, against the public interests in permitting disclosure having regard both to any benefit and to any damage that may arise from doing so (the balancing exercise).

10 The respondent also contends by way of defence that, notwithstanding the definition of “public authority” in the Act, it was not a public authority for the purposes of constitutional law. It claimed it was a commercial entity separate from the State entitled to its own constitutional rights. In particular it claimed its right to freedom of expression, which included the right to silence, had been infringed by encompassing it within the definition of “public authority” in an Act which had not been passed by the requisite special majority and which had not been certified as one amending the Constitution in relation to fundamental rights.

11 The appellant contends that raising this issue before this court has taken it by surprise because while there were brief references in the lengthy submissions of the respondent in the court below, those references to the constitutionality of the Act were extremely brief and were not developed. It claims also that allegations of unconstitutionality could not be raised by a side wind and that the Attorney General should have been joined as a party in relation to any matter where the constitutionality of an Act was in question.

Issues

12 The following issues therefore arise:

• [i] Whether on the face of the access decision a section 35 balancing exercise was conducted,

• [ii] Whether it was permissible to examine the affidavits filed on behalf of the respondents subsequent to the access decision to determine whether a section 35 balancing exercise had been conducted at the time of the access decision,

• [iii] Whether the access decision should be remitted to NGC for reconsideration,

• [iv] Whether it was permissible to raise the constitutionality of the FOIA on appeal, and

• [v] Whether the FOIA, not having being passed by the requisite special majority, and not containing a certificate that it was passed notwithstanding incompatibility with constitutional provisions was in fact unconstitutional insofar as it sought to bring the respondent within the ambit of the term “public authority” thereby requiring it to disclose documents in breach of its constitutional right to freedom of expression.

Conclusion

13 As to issue i] the evidence is that on the face of the access decision the required section 35 balancing exercise was conducted and there is no basis for concluding otherwise.

As to issue ii] further, and in any event, given that there was evidence in the access decision itself that a section 35 balancing exercise had been conducted, with the public interest factors being already before it, there can be no objection to the respondent's providing further and better particulars of that exercise in its affidavits.

As to issue iii] No useful purpose would be served by remitting the access decision to the respondent for its reconsideration to take into account the public interest factors when the evidence is that they have already been taken into account. In the alternative if the section 35 balancing exercise was flawed, contrary to the conclusion above, in the instant circumstances where all the relevant considerations are before the court, there is no reason why it cannot be conducted by the court.

As to issues iv] and v] in those circumstances there is no need to consider the constitutionality of the definition of public authority in the FOIA. This court would be reluctant to embark upon such an exercise in the absence of representation from the Attorney General before the trial judge, and the dearth of argument on this issue before the trial judge.

Orders

[14] In the circumstances the appeal and cross appeal are both dismissed.

Analysis – Summary of Reasons

15 The access decision was made in response to a letter dated 18 December 2018 (the request) by the appellant. The appellant's letter itself raised the alleged public interest factors that it contended would have had to be considered in the event of a section 35 balancing exercise. Those matters included:

• [i] The cost of the pipeline and who would bear that cost — The size of the deal and the economic impact on the government and people of Trinidad and Tobago. For example whether any guarantees or underwriting undertaken by the State were being given, binding on taxpayers;

• [ii] The impact of international sanctions upon the pipeline;

• [iii] The enforceability of any agreement with the Government of Venezuela given the uncertainty with respect to the requirements for ratification by the National Assembly of Venezuela;...