Joan Chee v The Auditor General

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice K. Ramcharan
• Judgment Date: 25 July 2022
• Neutral Citation: TT 2022 HC 179
• Court: High Court (Trinidad and Tobago)
• Docket Number: CLAIM NO: CV2021-01101

Between

Joan Chee

Claimant

and

The Auditor General

Defendant

Before the Honourable Mr. Justice K. Ramcharan

CLAIM NO: CV2021-01101

IN THE HIGH COURT OF JUSTICE

VIRTUAL HEARING

Appearances:

Mr. Anand Ramlogan SC, Ms. Jayanti Lutchmedial, Ms. Renuka Rambhajan instructed by Ms. Alana Rambaran Attorneys-at-Law for the Claimant

Mr. Reginald Armour SC, Mr. Raphael Ajodhia instructed by Ms. Kezia Redhead and Ms. Tiffany Kissoon for the Defendant

JUDGEMENT

INTRODUCTION

1 In March, 2019, the Claimant retired from the Port-of-Spain City Corporation. After not receiving an update on the processing of her file for the purpose of gratuity and pension payment, an application dated the 22 ^nd day of December, 2020, pursuant to the Freedom of Information Act (hereinafter “the FOIA”) was submitted.

2 The following were requested:

• a. A copy of the role and function of the office of the Auditor General in relation to gratuity/retirement benefits for public officers at the Port of Spain City Corporation;

• b. a copy of the Policy, Practice, Procedure and Criteria at the office of the Auditor General in relation to the payment of a retired public officer from the Port of Spain City Corporation who was appointed by the Statutory Authorities Service Commission;

• c. what are the steps that must be followed by the office of the Auditor General in relation to the work that must be done by/or at the office of the Auditor General in relation to a retired public officer from the Port of Spain City Corporation relative to the payment of their gratuity/retirement benefit;

• d. what are the steps that have been taken, thus, far in relation to the file of Ms. Joan Chee relative to the payment of her gratuity/retirement benefits;

• e. what are the steps that remain outstanding relative to the payment of her gratuity/retirement benefits in favour of Ms. Joan Chee;

• f. what are the reasons why the outstanding steps have not been taken and what is the timeframe within which they will be completed;

• g. what are the number of outstanding applications to be approved and processed by the office of the Auditor General in relation to retired public officers who have not yet been in receipt of their gratuity/retirement benefits;

• h. kindly identify the State entities in the public sector that are obliged to seek approval from the office of the Auditor General before a retired public officer can be paid their gratuity/retirement benefits;

• i. For each such entity, what are the number of outstanding applications that have been referred to the office of the Auditor General and the date(s) when each such application was referred to the said office for the year 2020 and how many applications for gratuity/retirement benefits by public officers that were referred to the said office for approval were in fact approved;

• j. how many applications which were referred to the office of the Auditor General were refused for each year within the past five (5) years (2015 to 2020) and how many approvals were in fact granted in respect of applications for gratuity/retirement benefits by the office of the Auditor General; and

• k. to whom does the Auditor General report.

3 The Defendant provided responses to the above and included that the Auditor General's Department is not a public authority under the FOIA. Reliance was placed on a legal opinion issued by the Solicitor General under the cover of Memorandum dated the 10 ^th day of February, 2003.

4 On the 9 ^th day of March, 2021, the Claimant issued a pre-action protocol letter challenging the decision and requesting the disclosure of the said legal opinion. On the 16 ^th day of March, 2021, Ms. Anita Mangra, responded with same together with reasons as to why the Auditor General's Department is not a public authority.

5 By way of Fixed Date Claim Form dated the 22 ^nd day of April, 2021, the Claimant seeks the following reliefs against the Defendant:

• a. A declaration that the Auditor General's Department is a “Public Authority” within the meaning of and as defined by Section 4 of the Freedom of Information Act Chapter 22:02;

• b. an order of certiorari to move into the Court and quash the decision of the Auditor General contained in the letter of the Defendant dated the 15 ^th day of January, 2021, that the office of the Auditor General is not a public authority within the meaning and definition of the Freedom of Information Act, Chapter 22:02 and is hence not subject to the provisions of the FOIA;

• c. costs; and

• d. such further other orders, directions or writs as the Honourable Court considers just and as the circumstances of this case warrants pursuant to Section 8(1)(d) of the Judicial Review Act, Chapter 7:08.

ISSUES

6 The following issues are for the Court's determination:

LEGISLATIVE FRAMEWORK

Freedom of Information Act

3. (1) The object of this Act is to extend the right of members of the public to access to information in the possession of public authorities by—

(a) making available to the public information about the operations of public authorities and, in particular, ensuring that the authorisations, policies, rules and practices affecting members of the public in their dealings with public authorities are readily available to persons affected by those authorisations, policies, rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of public authorities limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by public authorities.

(2) The provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and any discretion conferred by this Act shall be exercised as far as possible, so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

4. In this Act-

“public authority” means-

(h) a statutory body, responsibility for which is assigned to a Minister of Government

(k) a body corporate or unincorporated entity-

(i) in relation to any function which it exercises on behalf of the State;

(ii) which is established by virtue of the President's prerogative, by a Minister of Government in his capacity as such or by another public authority; or

(iii) which is supported directly or indirectly by Government funds and over which the Government is in a position to exercise control

“responsible Minister”, in relation to a public authority, means—

(a) the Minister of Government to whom responsibility for the public authority is assigned; or

(b) such Minister of Government as the President may, by Order, declare to be the responsible Minister of the public authority for the purposes of this Act;

5. (1) This Act does not apply to—

(a) the President;

(b) a commission of inquiry issued by the President; or

(c) such public authority or function of a public authority as the President may, by Order subject to negative resolution of Parliament, determine.

(2) For the purposes of this Act—

(a) in relation to its or his judicial functions, a Court or the holder of a judicial office or other office pertaining to a Court in his capacity as the holder of that office, shall not be regarded as a public authority;

(b) a registry or other office of Court Administration, and the staff of such a registry or other office of Court Administration in their capacity as members of that staff in relation to those matters which relate to Court administration, shall be regarded as part of a public authority.

39 (1) For the removal of doubt, a person aggrieved by a decision of a public authority under this act may apply to the High Court for judicial review of the decision .

(2) Notwithstanding any other law to the contrary, where application for judicial review of a decision of a public authority under this act is made to the High Court, that application shall be heard and determined by a Judge in chambers, unless the Court, with the consent of the parties, directs otherwise.

(3) In this section, “decision of a public authority” includes the failure of a public authority to comply with section 15 or 16 (1).

Constitution of the Republic of Trinidad and Tobago

116. (1) There shall be an Auditor General for Trinidad and Tobago, whose office shall be a public office .

(2) The public accounts of Trinidad and Tobago and of all officers, Courts and authorities of Trinidad and Tobago shall be audited and reported on annually by the Auditor General, and for that purpose the Auditor General or any person authorised by him in that behalf shall have access to all books, records, returns and other documents relating to those accounts.

(3) The Auditor General is hereby empowered to carry out audits of the accounts, balance sheets and other financial statements of all enterprises that are owned or controlled by or on behalf of the State .

(4) The Auditor General shall submit his reports annually to the Speaker, the President of the Senate and the Minister of Finance .

(5) The President of the Senate and the Speaker shall cause the report to be laid before the Senate and the House of Representatives, respectively, at the next sitting of the Senate and the House of Representatives after the receipt thereof, respectively.

(6) In the exercise of his functions under this Constitution the Auditor General shall not be subject to the direction or control of any other person or authority .

117. (1) The Auditor General shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition and shall hold office in accordance with section 136 .

(2) Where the office of Auditor General is vacant or the holder of the office is for any reason unable to perform the functions of his office the President...