In Maharaj v Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21, the Privy Council has handed down judgment in the first consideration of the Freedom of Information Act 1999 of Trinidad and Tobago. Unlike the Freedom of Information Act 2000 applicable in England and Wales, the Trinidad and Tobago FOIA contains no absolute exemptions from disclosure, but rather a general public interest override provision where the public authority relies upon an exemption. Claims to vindicate rights under FOIA must be brought by judicial review.
The context in Maharaj concerned a request for witness statements provided in arbitration proceedings between Petrotrin – a State-owned oil and gas company – and a commercial business partner, following the collapse of a multi-billion dollar joint venture. Those statements were relied upon by the Board of Petrotrin and the Attorney General of Trinidad and Tobago as part of the rationale for the withdrawal of a claim for negligence and breach of fiduciary duty brought by Petrotrin against its former Executive Chairman, seeking damages of some US$97m. The claim had been brought prior to a change in Government in Trinidad and Tobago, and the new Government had appointed Mr Jones to an advisory post. The withdrawal of the claim before trial, and payment to Mr Jones of his costs of the proceedings, had caused considerable public comment and Mr Maharaj had made the request for the underlying documents relied upon in order to scrutinise the reasoning upon which the decision to withdraw was purportedly based.
Petrotrin relied upon the confidentiality which attaches to documents produced in arbitral proceedings and asserted that there was no sufficient public interest which overrode that confidentiality to engage the right of access under FOIA.
At an oral hearing considering permission, the High Court of Trinidad and Tobago refused Mr Maharaj permission to pursue his claim for judicial review. The Privy Council unanimously overturned that refusal of permission, holding that the claim that the public interest override was engaged to favour disclosure was (at least) arguable and had a realistic prospect of success, in the light of the factual circumstances and the absence of any consideration on the part of the lower courts of the respective public interest factors.
The judgment of Lord Sales also contains an interesting summary of the different strands of the case law in Trinidad and Tobago as to the proper standard to be applied by the courts in a judicial review under FOIA.
The judgment of the Board may be read here.
Christopher Knight acted for Mr Maharaj, led by Richard Clayton KC and Anand Ramlogan SC.
