Sankar v Public Service Commission

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Narine, J.A.
• Judgment Date: 28 April 2014
• Neutral Citation: TT 2014 CA 18
• Docket Number: CV2006-00037; C.A. No. 58 of 2007
• Date: 28 April 2014

Court of Appeal

Mendonça, J.A.; Jamadar, J.A.; Narine, J.A.

CV2006-00037; C.A. No. 58 of 2007

Sankar

and

Public Service Commission

Appearances:

Mr. Ramlogan Ms. C. Baggan Dean, Ms. M. Ramsundar appeared for the appellant.

Mr. R. Martineau, S.C. Ms. P. Soverall, Ms. K. Foster appeared on behalf of the respondent.

Judicial review - Judicial Review of the refusal to provide certain documents — Whether the trial judge erred in refusing disclosure of the minutes and whether the respondent was in breach of section 27 (3) and 23 of the Act where the letter sent to the appellant did not provide reasons for the refusal or a reference to the public interest — Whether the respondent was permitted to introduce public interest considerations at the trial where the reasons provided were inadequate and the reasons had not been communicated to the appellant — Whether the trial judge was correct in findings on the frankness and candour issues where the evidential basis was not provided — Whether the partial access to the minutes requested was acceptable where the access had no legal basis — Costs — Whether the sum of costs were inadequate, arbitrary and unreasonable — Appeal allowed — Section 3, 13, 14, 15, 16, 23, 27, 35 of the Freedom of Information Act, 1999.

I have read the judgment of Narine, J.A. and agree with it.

A. Mendonça,

Justice of Appeal.

I too, agree.

P. Jamadar,

Justice of Appeal

Narine, J.A.

1 This is an appeal from the High Court on an application of the appellant to review the decision of the respondent to refuse to provide certain documents requested by the appellant under the Freedom of Information Act (the Act). The undisputed facts appear below.

2 The appellant held the position of acting Deputy Permanent Secretary in the public service. On 15 ^th November 2005 he requested certain information from the respondent (PSC) under the Act. The documents requested were in relation to his career and the reasons for him being bypassed for promotion. The documents requested were:

• (i) His position in the overall ranking of the Assessment Exercise (PPC of Canada) for the office of Deputy/Permanent Secretary.

• (ii) Recommendations/staff reports made on his behalf since 1997 for the offices of Deputy Permanent Secretary — by the Permanent Secretary.

• (iii) Public advertisements for the filling of the Offices of Deputy Permanent Secretary and Permanent Secretary with effect from January 1997.

• (iv) Minutes of the Meetings of the Public Service Commission (PSC) at which the issue(s) of appointment/promotion to the Office of Deputy Permanent Secretary and/or Permanent Secretary were discussed/determined relative to the appointments made in October 2005.

• (v) The score sheets or other documents of all public officers who were assessed or evaluated by the Personnel Psychology Centre of Canada for appointments/promotion to the offices of Deputy/Permanent Secretary.

• (vi) The results of the screening interview/assessment conducted by Symcon Systems Management Consultants Ltd on behalf of the Public Service Commission in 1997 for the filling of the office of Deputy Permanent Secretary.

• (vii) The names of all public officers whose names were retained for future reference arising from the exercise by Symcon Systems Management Consultants Ltd in 1997 as above at (1).

• (viii) Agreement between the Personnel Psychological Centre (PPC) of Canada and the Public Service Commission of Trinidad and Tobago (or whichever party) with respect to the Assessment Centre Exercise for the…

3 By letter dated 22 ^nd December 2005, attorney-at-law for the appellant wrote to the PSC, indicating that the time for the provision of the documents under the Act had expired, and called upon the PSC to provide the requested documents within seven days, failing which proceedings for judicial review would follow.

4 Not having received a response to his request the appellant filed an application for judicial review on 6 ^th January 2006, claiming the following reliefs:

1

An order of mandamus to compel the respondent to provide the applicant with the information requested in his application made under the provisions of the Freedom of Information Act dated the 15th day of November, 2005; 2. A declaration that the applicant is entitled to the information set out in the said application; 3. An Order directing the respondent to provide the applicant with the requested information free of charge within 7 days hereof; 4. Alternatively, an order directing the respondent to forthwith prepare and supply notice in accordance with section 23 of the said Act; 5. A declaration that there has been unreasonable delay on the part of the respondent in making a decision on the applicant's request under the Freedom of Information Act; 6. Costs; 7. Pursuant to section 8 of the Act, such further orders, directions or writs as the Court considers just and as the circumstances warrant.

5 The PSC filed affidavits in opposition to the application exhibiting, inter alia, a letter dated 21 ^st December 2005, which the appellant denied receiving. In the letter, the PSC responded to the appellant's request. The PSC provided the information requested in (i), (ii) and (iii) of paragraph 2 above. However, it refused to provide the minutes of the meeting of the PSC requested at (iv) and the agreement requested at (viii) on the ground that they were “internal working documents” and are exempt under section 27 of the Act. The score sheets requested at item (v) were refused pursuant to section 30 of the Act since they would involve disclosure of information relating to public officers. With respect to the information requested at (vi) and (vii), the PSC advised that it was still searching for the documents requested.

6 As it turned out the trial before the judge was focussed on the provision of the minutes of the meetings of the PSC at which the issue(s) of appointment/promotion to the office of Deputy Permanent Secretary and or Permanent Secretary were discussed or determined relative to the appointments made in October 2005.

7 The trial judge found that the reasons advanced by the respondent for refusing to provide the minutes fell woefully short of what is contemplated by the Act. He further found that the respondent had not stated the public interest considerations on which the decision was based. However, having himself examined the minutes, the trial judge was of the view that it was open to him to draw certain inferences. The judge went on to consider whether the respondent was entitled to refuse disclosure of the minutes on the basis that public officers may in the future be inhibited in expressing their views in meetings in which they are formulating government policy, if the Court sets the precedent of making such minutes available.

8 The trial judge considered the cases of Conway v. Rimmer [1968] A.C. 910 and Burmah Oil Co. Ltd. v. Bank of England [1980] A.C. 1090 in which the Court considered the “frankness and candour” argument as a ground for refusing disclosure. The trial judge noted that the English Courts have tended to regard the argument with a certain degree of scepticism. However, the judge went on to express the view that in the local setting “some public servants involved in the formulation of government policy would be legitimately inhibited in expressing their views or giving advice where it (sic) apprehended that those views or that advice might be disclosed”.

9 In the instant case, the trial judge noted that the matter involved appointments and promotion of high level public officials and concluded that disclosure of confidential comments made by members of the Commission, by fellow public servants of equal or almost equal rank, and by others whose views were sought by the Commission, “is likely to engender at the very least, a certain amount of disappointment and bitterness such as to adversely affect the harmonious relationship among persons who can be regarded as the chief accounting officers of the public service”. Accordingly, the judge found that disclosure of the minutes would cause “specific and tangible harm of such a nature that it would be inimical to the proper functioning of the public service” and would have “a substantial adverse effect on the effective and efficient conduct of government business”. The judge concluded that the minutes in issue ought not to be disclosed as disclosure would be contrary to the public interest.

10 Although the trial judge refused to order disclosure of the minutes, he ordered the Commission to provide to the appellants within ten days, the criteria applied or the policy adopted in the appointment/promotion of Deputy Permanent Secretaries including what impact, if any, the Assessment Centre Exercise had on the selection process. He further ordered that the issue of the missing documents be referred to the Ombudsman, and that the respondent should pay the appellant's costs in the sum of $45, 000.00.

GROUNDS OF APPEAL:

11 The appellant filed five grounds of appeal.

1

The Court erred in law in holding that the PSC had established that disclosure of the minutes would cause specific and tangible harm of such a nature that it would be inimical to the proper functioning of the public service and that disclosure would be contrary to the public interest. 2. There was no evidence that disclosure of the minutes would cause such harm and would therefore be contrary to the public interest and it was wrong for the judge to speculate about same in the absence of positive evidence as the respondent bore the onus of proof in this regard. 3. The appellant had a statutory right of access to the requested information unless the respondent was able to deny access by the proper invocation of one of the exemptions in the FOIA. The exemption invoked viz, that disclosure would be contrary to the public interest (section 27(1)(b)) was never made...