Our Right To Know – Part 6: Peeking Behind The Veil

AS it stands, that Technical Audit Report on the Reconstruction of St. Jude Hospital has been sent to the Attorney General’s Chambers and we have heard nothing further. We may never hear.

But, as we earlier considered what we assume is our right to know, we looked at the Freedom of Information Act of the United Kingdom. There, we found that even where that Act provides that information could be withheld from the public in specific circumstances, in most of those cases that decision can only be taken after it is weighed against the public interest in disclosure.

In the U.K., one such instance where information may be withheld from the public concerns Legal Professional Privilege. According to the Information Commissioner’s Office, (ico.org.uk/for-organisations/guidance-index), Legal Professional Privilege is a fundamental principle of English law which protects confidential communications between lawyers and clients. Even here, though, the withholding of information is subject to a public interest test.

Recently, in Trinidad & Tobago, the Joint Consultative Council of the Construction Industry (JCC) applied to the High Court for judicial review of a decision taken by the Government to withhold information requested under that country’s Freedom of Information Act. In that matter, the Government had issued a Request for Proposals for the development of a large tract of public land, and the JCC’s concern was that this amounted to a Tender process which had bypassed the Central Tenders Board.

When challenged by the JCC, the T&T Government replied that it was relying on advice from the Attorney General indicating that it had acted legally. The request by the JCC for publication of this advice finally led the Government to include a defense of Legal Professional Privilege for not providing the information when the matter went to Court.

Both the High Court and Court of Appeal of Trinidad & Tobago ruled that, in this instance, the public interest in disclosure of the advice from the Attorney General was more substantial than the Government’s interest in maintaining confidentiality, and ordered the advice from the Attorney General to be released to the JCC. The Government has since obtained leave to appeal to the Privy Council although it is unclear whether or not this appeal is being pursued.

With the Technical Audit of St. Jude hidden behind the closed doors of our Attorney General’s Chambers, we can only wonder how our Courts would have ruled had we had a Freedom of Information Act, and had our Government also sought to claim the defense of Legal Professional Privilege in its refusal to divulge the advice provided by the Attorney General.

In another matter recently before the Courts in Trinidad & Tobago, a retired senior public servant challenged the appointment of two individuals to one of the Trinidad & Tobago Service Commissions on the ground that they did not possess the qualifications and experience required by the Constitution to serve on that Commission. He, therefore, filed an application to the High Court seeking an interpretation of the relevant section of the Constitution.

In making his challenge, the public servant made it clear that he was not personally affected by the appointments, had no personal interest in them, did not have personal knowledge of one of the appointees and was only slightly acquainted with the other. In seeking the Court’s interpretation of the meaning of “qualified and experienced” in the Constitution, he indicated that he was acting purely in what he considered to be the public interest of Trinidad & Tobago.
The High Court dismissed his claim, concluding that he had no “locus standi”, or standing to commence an action, as the infringement of the Constitution did not personally affect him. This decision was overturned by the Court of Appeal which ruled that the citizen had a legitimate interest in a properly-constituted Service Commission, and that this was a sufficient interest to vest him with the appropriate standing to bring the matter before the Court. The Privy Council has this year upheld the ruling of the Court of Appeal, (Privy Council Appeal No. 0069 of 2015).

We raise this case as the Report of the St. Lucia Constitutional Reform Commission (March 2011) also addresses this issue of locus standi, concluding that “the rules on locus standi in the St. Lucia Constitution were too restricted” and that they should be amended to give standing to “(d) anyone acting in the public interest” (pg. 110).

So, while we assume that we have a right to know how our government is conducting our business, we in fact have little right, as there is little means of enforcing that moral right which is ours. We have no Freedom of Information Act, no Judicial Review legislation, and none of that thing called “locus standi” under our Constitution.

There is nothing to give us any hope that we will see passage of the legislation that would empower citizens to challenge Government decisions, much less a hope for the now absolutely essential reform of our Constitution by either of our two parties.