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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2015-03718
BETWEEN
GEETA DHARAMDASS Claimant
AND
THE COMMISSIONER OF POLICE Defendant
Before the Honourable Madam Justice Margaret Y. Mohammed
Dated the 29th September 2016
Appearances:
Mr. Kent Samlal instructed by Mr. Douglas Bayley Attorneys at law for the Claimant.
Ms. Keisha Prosper and Ms. Ronnell Hinds instructed by Mr. Ryan Grant Attorneys at law for the
Respondent.
DECISION
1. The broad issue to be determined in this matter is whether the Claimant should be granted
access to statements and documents relative to a police investigation into a report (made by
the Claimant’s husband Mr Ronald Rampaul on the 20th November 2014) concerning an
assault of the Claimant’s son Nicholas Rampaul on the 18th and 19th November 2014.
2. Nicholas Rampaul was the victim of bullying and assault by unknown classmates at the
Presentation College, San Fernando on both the 18th and 19th November 2014. The assault
resulted in Nicholas Rampaul sustaining severe injuries to his left testicle which was later
removed at the San Fernando General Hospital on the 20th November 2014. On the same day
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the Claimant’s husband Ronald Rampaul reported the incident to the San Fernando Police
Station. On the 17th July 2015 the Claimant applied to the Defendant for information under
the Freedom of Information Act1 (FOIA) seeking access to all statements and/or
investigative reports, station diary extracts, a copy of the police report; and the status of the
investigation and other relevant documents pertaining to the report made by Mr. Ronald
Rampaul on the 20th day of November 2014 at the San Fernando Police Station (“the
Claimant’s FOIA request”).
3. By letter dated the 27th day of July 2015, the Defendant acknowledged the Claimant’s
application and stated that the request was being dealt with and that the relevant particulars
would be forwarded immediately upon receipt of same. There was no substantive response
to the Claimant’s FOIA request and on the 7th day of September 2015 the Claimant issued a
pre-action protocol letter dated the 3rd day of September 2015 (by hand) to the Defendant
threatening judicial review of his failure to provide a decision in accordance with the FOIA.
There was again no substantive response to the said pre-action protocol letter.
4. On the 5th day of November 2015, the Claimant filed her application for leave for judicial
review and leave was granted in Chambers without a hearing. The Claimant instituted the
instant judicial review proceedings seeking the following relief:
a. A declaration that the Defendant breached his statutory duty in section 15 of the FOIA
to take reasonable steps to enable the Claimant to be notified of the approval or refusal
as soon as practicable but in any case not later than 30 days after the day on which the
request was made.
b. An order of mandamus to compel the Defendant to make a decision on the Claimant’s
FOIA request within 7 days whether her application has been approved or refused in
accordance with section 15 of the FOIA.
c. Alternatively or additionally a declaration that the Claimant is entitled to access the
requested information pursuant to the Claimant’s FOIA application.
d. Costs.
1 Chapter 22:02
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e. Other relief under section 8(1) of the Judicial Review Act2.
5. In support of the instant matter the Claimant asserted that she made numerous attempts to
get the information requested from the San Fernando Police Station but to no avail and that
the requested information is needed for her to determine if she has any basis for instituting
any legal action on behalf of her son for injuries sustained.
6. The Defendant’s initial response to the claim was set out by Pooran Nandlal Acting Corporal
and records Supervisor of the San Fernando Police Station3. According to officer Nandlal
upon receiving the Claimant’s FOIA request (he could not recall when but it is reasonable
to assume that it was sometime after 27th July 2015) he instructed WPC Husain to prepare
the Station Diary Extracts as requested. Approximately two days later WPC Husain
presented him with it and he verified the copy of the extract. Soon thereafter he forwarded
the station diary extracts to the office of the Senior Superintendent Southern Division.
Subsequent inquiries from officer Nandlal into the location of the investigator’s file on the
matter revealed that it was not in the possession of the police service but rather in the
possession WPC Walcott. Officer Nandlal added that he recalled looking at the Minute Sheet
on the file and to the best of his recollection WPC Walcott had submitted the file to her
immediate supervisor Acting Sergeant Ali and it was returned to her with further instructions
which he could not recall. However WPC Walcott had resigned from the Police Service
taking with her the police file in this matter which contained all the reports and statements
save and except the station diary extracts which was the only information which Officer
Nandlal was left with.
7. Officer Nandlal further added that both he and WPC Husain made numerous attempts to
contact WPC Walcott by telephone without success but they were unable to retrieve the file.
Therefore by February 2016 officer Nandlal was unable to indicate if the matter will be
reassigned to another officer since that was a decision to be taken by the Second Division
2 Chapter 7:08 3 Affidavit filed on the 1st February 2016
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Officer in charge of the station Inspector Yearwood and that Inspector Ramnarine was in
charge of the station at that time.
8. The aforesaid account by officer Nandlal on the initial position adopted by the Defendant in
response to the instant claim was that apart from the station diary extract the Defendant could
not provide any other reports relating to the Claimant’s FOIA request since the police file
which was in the possession of WPC Walcott could not have been located nor could she have
been contacted and therefore the status of the investigation could not have been ascertained.
9. The only conclusion I can draw from the aforesaid response is an admission by the police
service of the careless manner in which it treated with the complaint made by the Claimant’s
husband on the 20th November 2014 and which does little to foster confidence in the police
service.
10. Not being satisfied with the initial response given by the Defendant in its first affidavit, I
gave directions for the Defendant to file and serve a further affidavit detailing their further
efforts to locate the said investigative file
11. Quite remarkably, after the hearing of the instant matter on the 21st March 2016 the police
file was retrieved and reassigned to WPC Nicollette Persad. It is reasonable to conclude that
if the Claimant had not vigorously pursued the instant matter and I had not given directions
concerning the location of the police file, the investigation would have not been actively
pursued.
12. According to WPC Persad4 on the 14th April 2016 she received an incomplete police file and
she was assigned to continue conducting the investigation. She had observed from the file
that interviews were conducted and some statements were provided. She was directed by her
seniors to re-interview persons who were previously interviewed for the purpose of
clarification of certain parts of their statements. Other persons who had not been previously
interviewed were also to be interviewed. Therefore some 18 months after the complaint
4 Affidavit filed on the 14th April 2016
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WPC Persad was directed to conduct interviews of two sets of persons namely new persons
and persons who were already interviewed. WPC Persad’s affidavit attached the statement
given by Nicholas Rampaul to the police. In his statement he related the incident, his injury
and the effect on him, he named and described some of the persons who he recalled were
involved in the attack on him but because of the very nature of how the attack was inflicted
on him he was not in a position to see all the persons who were involved in it. I will refer to
the said statement in greater detail later.
13. As at the 13th May 2016 WPC Persad indicated she had presented the file with the
investigations she undertook to her seniors and she had indicated that she needed an
extension to continue the investigation of the matter since there were outstanding persons to
interview. By letter dated 15th June 2016 the Defendant wrote to the Claimant’s attorney at
law indicating that he had obtained the police file in the matter and that he was of the view
that disclosure of the items in the file are exempt documents under section 28(1) (a) and (c)
section 30 and section 32 of the FOIA.
Preliminary matters
14. Relief (b) in the Fixed Date Claim has been addressed since by letter dated 15th June 2016
the Defendant made his decision on the Claimant’s FOIA request. Based on the evidence of
officer Nandlal and WPC Persad the production of the station diary extracts is not in issue
although there was no evidence that it was indeed provided to the Claimant. It was also clear
that the status of the police investigation can best be described as not concluded. The main
contention was the non-disclosure of the statements and/ or investigative reports.
The FOIA:
15. Section 3 of the FOIA sets out the object of the legislation. It states:
“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
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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.”
16. It was not in dispute that the Defendant is a public authority under the FOIA.
17. Section 11 of the FOIA states:
(1) Notwithstanding any law to the contrary and subject to the provisions of this Act, it
shall be the right of every person to obtain access to an official document.
(2) Nothing in this Act shall prevent a public authority from—
(a) giving access to documents or information;
(b) amending documents, other than as required by this Act where it has the discretion
to do so or where it is required to do so by any written law or order of a Court”
18. Section 13 of the FOIA lays out the procedure to be followed by a person who is seeking to
access official documents as:
“13. (1) A person who wishes to obtain access to an official document shall make a request
in the form set out in the Schedule, to the relevant public authority for access to the
document.
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(2) A request shall identify the official document, or provide sufficient information to
enable the designated officer of the public authority, or an employee of the public
authority who is familiar with the relevant documents, to identify the document with
reasonable effort.
(3) A request may specify in which of the forms described in section 18 the applicant
wishes to be given access.
(4) Subject to section 21, a request under this section may be made for access to all
records of a particular description or all records relating to a particular subject.
(5) An application for access to an official document held by a public authority referred
to in section 4(k) (i) or (iii) shall be made to the responsible Minister.”
19. Section 15 of the FOIA sets out the period within which a public authority must respond to
a request for information under the FOIA. It states:
“15. A public authority shall take reasonable steps to enable an applicant to be notified
of the approval or refusal of his request as soon as practicable but in any case not
later than thirty days after the day on which the request is duly made.”
20. Section 23 of the FOIA sets out the manner in which the public authority is to respond to a
FOIA request where an applicant is not entitled to access to a document. It states:
“23. (1) Where in relation to a request for access to a document of a public authority,
a decision is made under this Part that the applicant is not entitled to access
to the document in accordance with the request or that provision of access to
the document be deferred or that no such document exists, the public authority
shall cause the applicant to be given notice in writing of the decision, and the
notice shall—
(a) state the findings on any material question of fact, referring to the material on
which those findings were based, and the reasons for the decision;
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(b) where the decision relates to a public authority, state the name and designation of
the person giving the decision;
(c) where the decision does not relate to a request for access to a document which if
it existed, would be an exempt document but access is given to a documents in
accordance with section 16(2), state that the document is a copy of a document
from which exempt information has been deleted;
(d) inform the applicant of his right to apply to the High Court for judicial review of
the decision and the time within which the application for review is required to be
made;
(e) where the decision is to the effect that the document does not exist or cannot, after
a thorough and diligent search, be located, inform the applicant of his right to
complain to the Ombudsman.”
21. In Caribbean Information Access Ltd v The Honourable Minister of National Security5
the Court of Appeal in this jurisdiction described the intention of Parliament as creating a
right of access to information to the public as set out in the legislation as:
“8. There is no dispute that “the policy, purpose and object of the FOIA are to create a
general right of access to information 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 authorities6
22. In the aforesaid authority the Court of Appeal adopted a purposive approach in interpreting
and applying the provisions of the FOIA to further the objects and policy of the legislation.
At paragraph 8 it also stated:
5 Civ Appeal 170 of 2008 6 See HCA CV 2005/00080 Carib Info Access Ltd v FCB, Minister of Finance at page 6 and see section 3 and 11 of
the FOIA
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“There can also be no dispute that the court in both interpreting and applying the
provisions of the FOIA is mandated to do so purposively, so as to further the policy,
purpose and object stated above7. The FOIA provides for a statutory right to
information held by public authorities, and its effect is to broaden and deepen the
democratic values of accountability, transparency and the sharing of and access to
information about the operations of public authorities8.” (Emphasis added).
Section 15 of the FOIA
23. Section 15 of the FOIA sets out the time frame within which the public authority must act
upon receipt of a FOIA request. It states:
“A public authority shall take reasonable steps to enable an application to be
notified of the approval or refusal of his request as soon as practicable but in any
case not later than thirty days after the day on which the request is duly made.”
24. The Claimant submitted that her right under Section 15 of the FOIA was breached since the
Claimant’s FOIA request was delivered by hand to the Defendant on the 20th day of July
2015 and there was no decision taken in relation to it within the thirty (30) day time limit as
mandated by section 15 of the FOIA. Further, the Defendant only raised the exemptions at
one of the Case Management Conferences, after the second affidavit was filed, and at the
request of Counsel for the Claimant, the Defendant produced a letter dated the 15th June
2016 which stated that he relied on the exemptions in sections 28 (1) (a) and (c), section 30
and section 32 of the FOIA stating that the documents concerned an on-going investigation
and that when the investigation came to an end the documents would remain exempt as it
was subject to “public interest immunity”.
25. The Defendant only formally responded to the Claimant’s FOIA request on the 15th June
2016. In any event, in both the affidavit evidence and in the written submissions the
Defendant did not dispute that he did not comply with his statutory duty under section
15.
7 See HCA S 2005/2004 Sharma v the Integrity Commission at page 5 and see section 3 (2) of the FOIA 8 See section 3(1) of the FOIA
Page 10 of 30
26. Therefore in such circumstances the Claimant is entitled to the first declaration claimed.
Are the documents exempt under section 28(1) (a) and (c) of the FOIA?
27. Section 28 deals with the exemptions from disclosure for law enforcement. It provides that:
“Subject to this section, a document is an exempt document if its disclosure under this
Act would, or would be reasonably likely to –
(a) Prejudice the investigation of a breach or possible breach of the law or prejudice
the enforcement or proper administration of the law in a particular instance;
(b) …
(c) Disclose, or enable a person to ascertain, the identity of a confidential source of
information in relation to the enforcement or administration of the law…”
(Emphasis added)
28. In Caribbean Information Access9 the Court of Appeal considered the issue of “what is
required of a public authority when it claims exemptions of disclosure and the granting of
access to information and documents under the FOIA”. At paragraphs 18 and 19 the Court
explained the approach a public authority must take as:
“18…. where a claim of exemption is relied on under the FOIA, a Respondent must
satisfy a court of the reasonableness of the claim. This is because the FOIA specifically
provides:
(i) That where a decision is made that an applicant is not entitled to access to
information requested, that the reasons for that decision must be given in
writing; and
(ii) That a person aggrieved by any decision of a public authority to refuse to
grant access to information requested under the FOIA, may apply to the
High Court for judicial review of that decision.” (Emphasis added).
19. The sufficiency of reasons will always be determined by the circumstances and
context which surround the particular request made and exemptions claimed.
However, when one considers section 23 of the FOIA it is clear that once a decision is
9 supra
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made that an applicant is not entitled to access to the document requested, then the
statutory obligation to give reasons requires that all of the relevant requirements of
section 23(1) and (2) must be satisfied. For example the findings of any material
question of fact, with reference to the material, must be stated and if a document
requested does not exist or cannot be located, that must be stated; and if a document is
exempt under section 24, 25 or 28, the decision to refuse access may be stated in terms
which neither confirm or deny the existence of any document. It therefore follows that
where exemption is claimed, the reasons must address the specific considerations
identified in the sections and subsections relied on.” (Emphasis added).
29. The Court further stated at paragraphs 27 and 28:
“27. The FOIA has provided a statutory right to information from public authorities
subject to exceptions and exemptions. It is always for the public authority to show that
it is entitled to rely on an exemption claimed and to not grant access to the documents
requested. The exemptions provided for in section 28 are quite specific and limited.
Thus given the statutory right to access, the duty to assist in facilitating disclosure, the
mandate to disclose even exempt documents where on a balance it is in the public
interest to do so, the mandate to redact exempt documents in order to render them non-
exempt so to facilitate disclosure, and the duty to interpret and apply the provisions of
the FOIA (including the exemption provisions) in such a way so as to ‘facilitate and
promote…the disclosure of information”, there is no presumption in favour of
exemption from disclosure of or access to documents held by public authorities. The
minimum standard of proof that the public authority must attain to justify exemption
under section 28 is reasonableness- that is, as the wording of section 28 (1) indicates,
“a document is an exempt document if its disclosure would, or would be reasonably
likely to…
28. Exemptions are also to be approached in a careful and contextually sensitive
manner. This is so particularly in the class of exemptions provided for by section 28 –
Law Enforcement Documents. A delicate balancing of competing policy interest must
be engaged. Thus in my opinion the appropriate test, as I have indicated, is one of
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reasonableness: Is it reasonable, balancing the competing interests and in light of the
explanations given (and where necessary, the evidence supplied), to uphold the
exemptions claimed? This is an objective test and the public authority must satisfy the
court on the civil standard of likelihood.” (Emphasis added).
30. The only evidence supplied by the Defendant that the disclosure of the documents can
prejudice the investigation or would enable a person to ascertain the identity of a confidential
source of information relative to the investigation is from WPC Persad who stated at
paragraphs 7, 8 and 9 of her affidavit that:
“7. I am of the view that the provision of any documents to the Applicant can prejudice
the continued conduct of the investigation since the provision of these documents can
affect my ability to interview persons and obtain statements from other suggested
persons who in this case are minors. These minors can supply valuable information
which can lead to possible charges being laid. Additionally because I am required to
re interview persons to clarify statements provided if these statements are indeed
disclosed it is highly probable that clarification would not be provided.
8. Of particular importance is the fact that the file identifies the names of the witnesses
and persons who were not part of the incident but voluntarily supplied the police with
information on the instant matter.
9. As an investigating officer my role among other things is to ensure that I obtain as
much information as possible before laying a charge. From my experience as an
investigating officer I have realised that persons become reluctant to provide
information to the police if they are of the view that there is a possibility that their
identities will be revealed. This unwillingness can become more evident in the case of
minors. In the instant case, at least three parents have declined to consent to their minor
children being interviewed. One of these parents indicated that this was for fear that
child’s reputation, will be tarnished, as individuals may assume that he was involved
in the incident.”
31. The Claimant argued that she has a statutory right to obtain the documents. Her son has been
dealt a grave wrong by persons unknown to him, but who may be identified in the requested
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documents. He desires to seek redress from the Court by instituting an action and the
contemporaneous investigative documents compiled by the Defendant would assist the
Claimant’s son immeasurably. It was also argued that it is untenable for the Claimant’s son
to face the possibility of never obtaining essential, contemporaneous documentary evidence
to substantiate his possible civil claim, because the investigating officer is of the opinion
that, without the benefit of thorough and detailed evidence, persons may decide not to co-
operate with the investigation any further or at all.
32. The Defendant has asserted that based on the evidence of WPC Persad her continued
investigation of the matter would be prejudiced since one person has already refused to
provide a further statement, three parents have declined to consent to their minor children
being interviewed, with one of the parents contending that this was for fear that her child’s
reputation would be tarnished. Therefore, it was reasonable for the Defendant to claim the
exemption under section 28 (1) (a). Further the Defendant also submitted that while WPC
Persad did not indicate that there was an expressed agreement that the information supplied
was subject to an obligation of confidence, the nature and circumstances of obtaining the
statements demonstrate that confidentiality can be implied and that the police service
normally relies on the voluntary assistance of citizens in crime solving who do not go on to
be witnesses but instead are considered informants. Therefore the supply of the information
requested by the Claimant would hinder the police service in obtaining future information in
matters of this nature.
33. In light of the objects of the FOIA and the aforesaid learning there is no presumption in
favour of exemption from disclosure of or access to documents held by public authorities.
The onus is on the Defendant to demonstrate that the document falls under the exemptions
claimed and that it is reasonable in the circumstances balancing the competing interests to
withhold disclosure of the document.
34. I am mindful that I did not have the benefit of examining the statements, even in a redacted
form to arrive at my own opinion on the issue of prejudice as raised by the Defendant. I was
left to assess the Defendant’s assertion of prejudice from the evidence of WPC Persad.
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According to WPC Persad she has been employed for three years as a police officer and
while she did not state the period of her experience as an investigating officer, I accept that
she has over the three year period acquired sufficient experience as an investigating officer
when it comes to gathering information with respect to matters under her control. However,
I was not satisfied that WPC Persad, as an experienced investigating officer, provided a
sufficiently reasoned explanation to demonstrate that the police service would suffer any
substantial prejudice in the future conduct of the instant investigation. WPC Persad failed to
indicate how many persons she has to re-interview for clarification. She did not indicate if
they are only adults or only minors or both. There was no evidence when or if the police
service expects to complete the investigation; or what was WPC Persad’s position on the
possibility of charges being laid even without obtaining any further statements since she
stated that at least three parents have already declined to have their minor children
interviewed. For these reasons I am of the opinion that the Defendant cannot rely on the
exemption under section 28(1)(a).
35. On the other hand, I accept that there is merit in the Defendant’s argument that persons who
gave statements voluntarily as a confidential source to assist in the police investigation of
the complaint may not wish for their identity to be revealed and therefore the statements are
exempted under section 28 (1) (c). According to WPC Persad the persons who gave
confidential information who may not wish to have their identities revealed were both
witnesses and persons who were not part of the incident. There can be little doubt that the
supply of information from confidential sources is critical in the conduct of a police
investigation. When one examines the Defendant’s evidence to support this exemption it is
unclear how many of the statements in the investigation were supplied by persons under an
express or implied pledge of confidentiality and who may not wish to be named. Despite
this lack of clarity, I am of the opinion that the Defendant can rely on the exemption under
section 28 (1) (c) for the statements from persons who were gave statements voluntarily and
who may not wish to be named. Of course this exemption is still subject to the overriding
public interest in section 35 of the FOIA.
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Are the documents exempt under section 30?
36. Section 30 (1) of the FOIA states:
“A document is an exempt document if its disclosure under this Act would involve the
unreasonable disclosure of personal information of any individual (including a
deceased individual).” (Emphasis added).
37. “Personal information” is defined in section 4 of the FOIA as:
“….information about an individual, including –
(a) information relating to the race, national or ethnic origin, colour, religion,
age, sex or marital or family status of the individual;
(b) information relating to the education or the medical, psychiatric,
psychological, criminal or employment history of an individual or
information relating to financial transactions in which the individual has
been involved;
(c) any identifying number, symbol or other particular assigned to the
individual;
(d) the address, telephone number, fingerprints or blood type of the individual;
(e) the personal opinions or views of the individual except where they relate to
another individual;
(f) correspondence sent to a public authority by the individual that is implicitly
or explicitly of a private or confidential nature, and replies to that
correspondence that would reveal the contents of the original
correspondence;
(g) the views or opinions of another individual about the individual;
(h) the individual’s name where it appears with other personal information
relating to the individual or where the disclosure of the name would reveal
other personal information about the individual.”
38. The approach to be taken in determining whether a document contains “ personal
information” was discussed by Moosai J (as he then was ) in Darren Baptiste v Police
Page 16 of 30
Service Commission and the Commissioner of Police10, where the Court relied on the
Australian case of Stewart and Department of Transport11 which stated that:
“The application of this provision calls for a two-step process: first, determine whether
a document contains information relating to the personal affairs of any person; and if
so, then determine whether disclosure of that information would be unreasonable.12”
(Emphasis added).
39. The burden is on the Defendant to first demonstrate that the documents fall under the
definition of “personal information” in this jurisdiction. Secondly the Defendant must then
cross the more challenging second hurdle in the test, which is whether the disclosure of the
documents “would be unreasonable in the circumstances”.
40. In Caribbean Information Access13 the request made included the names of persons
interviewed on file, as well as information about group or pretext interviews done (for which
documents in support were requested). The Court held the following:
“In relation to the first, second, third, seventh, eighth, ninth and tenth requests, I am
prepared to accept that in the exceptional circumstances of an ongoing police
investigation into a homicide in Trinidad and Tobago during the period under
consideration, the documents sought can be considered exempt on the bases of the
section 28 exemptions claimed by the Respondent. It is only because of the exceptional
context and circumstances in which these requests were made that the Respondent’s
responses meet the reasonableness test for exemption.14” (Emphasis added)
41. In my opinion the approach taken by the Court of Appeal in the Caribbean Information
Access15 case was made in the context of a murder investigation at a time when the murder
rate in Trinidad and Tobago was out of control since it expressly stated that the only reason
the documents were held to fall under the exemption in that particular case was because of
10 CV 2007-03288 11 [1993] Ql Cmr 6; [1993] 1 QAR 227 (9 December 1993) 12 Para 14 13 supra 14 Para 46 15 Supra
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the “exceptional context and circumstances” in which the request was made. I therefore agree
with the Claimant’s position that this authority supports the Claimant’s case, since when
viewed as a whole, contextually, the Claimant’s circumstances, though extremely serious,
cannot be viewed as exceptional in the sense of a homicide investigation at a time when
murder rates were spiralling.
42. In the Australian case of Colakovski v Australian Telecommunications Corporation16
Mr Colakovski sought information from the Australian Telecommunications Corporation
about traces it had made of nuisance calls to his number. He wanted to discover the identity
of the caller or callers. Telecom refused to release the information on the ground that to do
so would be an unreasonable disclosure of information relating to the personal affairs of the
callers. The Full Court of the Federal Court upheld Telcoms position. It held that “what is
unreasonable disclosure of information for purposes of section 41(1) [the equivalent of
section 30] must have at its core public interest considerations”. The Court also made the
following observation with respect to documents which can assist in the investigation of an
offence:
“ documents contain information which could provide valuable evidence or lead to
evidence that would be useful or material in establishing the commission of an offence
under the law, that is a matter which in my view may be taken into account in
determining whether the disclosure of the information would be unreasonable under s.
41 (1)”.
43. The Defendant satisfied the first limb of the test since the personal information which he
does not wish to disclose is the names of witnesses and persons who were not part of the
incident but voluntarily supplied the police with information in the investigation.
44. With respect to the second limb of the test i.e. “would it be unreasonable in the circumstances
to disclose the documents?” In my view the factual matrix of this case supports the position
that it is reasonable. The Claimant son was terribly injured at school by his own classmates,
and now seeks to obtain the evidence to support his civil claim. The police service has failed
16 (1991) 23 ALD1 at 123; 1991 WL 1120688 at 441
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to diligently pursue the complaint after it was made in November 2014 one day after the
incident to the extent that by 2016 the police still has not completed the investigation and
cannot even give an assessment of whether charges are imminent. WPC Persad’s evidence
was deficient in that she has not stated how many statements were taken; how many
statements were from voluntary witnesses or alleged perpetrators, whether the police advised
the persons who provided voluntary information that such information is subject to
disclosure; what are the chances of the police being able to lay criminal charges even without
additional information assuming that nobody else comes forward. The Defendant also failed
to provide any evidence to the Court to demonstrate that there were exceptional
circumstances not to disclose the information requested.
45. However it is equally reasonable that if the names of the witnesses and persons who gave
voluntary statements are disclosed the future conduct of the investigation would be impaired
since based on the experience of WPC Persad the unwillingness by minors to co-operate
with the police service is more evident and already at least three parents have declined to
consent to their minor children being interviewed. When I weigh the aforesaid
circumstances, I have found that the scales tip in favour of the Defendant being able to rely
on the exemption under section 30 in the circumstances of this case. However this finding is
subject to the section 35 public interest override.
Are the documents exempt under section 32?
46. Section 32 of the FOIA provides:
“(1) A document is an exempt document if its disclosure under this Act would divulge
any information or matter communicated in confidence by or on behalf of a
person or a government to a public authority, and
(a) The information would be exempt information if it were generated by a
public authority; or
(b) The disclosure of the information under this Act would be contrary to the
public interest by reason that the disclosure would be reasonably likely to
impair the ability of a public authority to obtain similar information in the
future.
Page 19 of 30
(2) This section does not apply to information-
(a) Acquired by a public authority from a business, commercial or financial
undertaking; and
(b) Relates to trade secrets or other matters of a business, commercial or
financial nature.”
47. In the Australian case of Rindos v The University of Western Australia17 the issue before
the Information Commissioner was whether certain documents were exempt where their
disclosure could reasonably be expected to prejudice the future supply of information. The
wording of the equivalent provision was similar to section 32 of the FOIA save and except
the Australian provision substituted the word “impair” in (1) (a) with the word “prejudice”.
The Concise Oxford English Dictionary18 has defined “impair” as “weaken or damage”
which is similar to the meaning of prejudice.
48. In Rindos the Commissioner determined that the documents were not exempt and stated the
following learning which I am of the opinion is instructive in applying our section 32. At
paragraphs 29 to 32 it was stated that:
“29. The Concise Oxford Dictionary, Eight Edition, defines “prejudice” as meaning,
inter alia, “harm or injury that results or may result from some action or judgement”.
The meaning of the phrase “could reasonably be expected to prejudice” was considered
by all the judges of the full Federal Court in News Corporation Limited v National
Companies and Securities Commission (1984 FCA 400; (1984) 57 ALR 550. In that
case, Woodward J. said, at page 561:
“…I think that the words “would, or could reasonably be expected to…prejudice”
mean more than “would or might prejudice”. A reasonable expectation of an event
requires more than a possibility, risk or change of the event occurring…in my view it
is reasonable to expect an event to occur if there is about an even chance of its
17 [1995] WAICmr 20 (10 July 1995) 18 11th ed
Page 20 of 30
happening and, without attempting to suggest words alternative to those chosen by the
draughtsman, it is in that general sense that the phrase should be read.
30. It is also my view, that the phrase “could reasonably be expected to prejudice the
future supply of information of that kind to the Government or an agency” is not to be
applied by reference to whether the particular person whose confidential information
is being considered for disclosure could reasonably be expected to refuse to supply
such information in the future, but by reference to whether disclosure could reasonably
be expected to prejudice the future supply of such information from other sources
available or likely to be available to the Government or an agency.”
31. In Ryder v Booth (1985) VicRp 86; (1985) VR 869, the Full Court of the Victorian
Supreme Court considered whether the Victorian equivalent of clause 8 (2) applied to
medical reports provided in confidence to the State Superannuation Board. On the
question of whether disclosure would be reasonably like to impair future supply of
information, Young C.J. said, at p 872:
“The question then is, would disclosure of the information sought impair (i.e.
damage) the ability of the Board to obtain similar information in the future. Put
in terms of the present appeals this means that the question is, would the
disclosure of the information damage the ability of the Board to obtain frank
medical opinions in the future. It may be noted that it is the ability of the Board
that must be impaired. The paragraph is not concerned with the question whether
the particular doctor whose report is disclosed will give similar information in
the future but with whether the agency will be able to obtain such information.
There may well be feelings of resentment amongst those who have given
information “in confidence” at having arbitrarily destroyed by the operation of
the legislation, but is another thing altogether to say that they or others will not
provide such information in the future. It is not sufficient to show that some
people may be inhibited from reporting so frankly if they know that their report
may be disclosed. More is required to satisfy the onus cast upon the agency by
s. 55(2) of the Act.”
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32. I accept that those comments as being relevant to my consideration of the agency’s
claim for exemption under clause 8(2) and applying those tests to the disputed
documents, in my view, the question that should be asked by the agency in respect of
each of them are:
Could disclosure of the particular document reasonably be expected to pose more than
a possibility or small risk of harm in the future to the supply to the agency of
information of the class or character contained in the document under consideration?
Are there any competing interests to be weighed against that risk such that disclosure
of the particular document, nevertheless, would, on a balance, be in the public
interest?” (Emphasis added)
49. According to WPC Persad’s affidavit evidence in the instant matter certain potential
interviewees have thus far expressed their unwillingness in supplying and assisting the police
investigation with statements. She went further to state that investigating officers often rely
on the voluntary provision of information by persons and that disclosure of the documents
obtained would not only hinder this investigation but also future investigations conducted
by the police since she is of the view that such disclosure can have an inhibiting effect on
the free flow of information provided to the police in the future.
50. There are two aspects of the exemption which the Defendant is relying on namely disclosure
of the documents would (a) impair the police service ability to obtain similar information in
the instant investigation; and that (b) it would also impair the police ability to obtain
information voluntarily in future police investigations of similar matters.
51. In my opinion it could not have been the intention of Parliament when drafting section 32 to
protect individuals who had supplied information from having their identities and personal
information revealed, if that disclosure would prejudice the possibility of those same
individuals providing information in the future. A purposive interpretation of the FOIA
Page 22 of 30
would mean that Parliament intended to protect the general future supply of information to
the Defendant from other sources available or likely to be available to the public authority.
52. In the instant case, according to WPC Persad some of the persons approached thus far by the
Police Service have expressed reservations in voluntarily supplying information. In light of
the learning, the exemption does not apply in such circumstances since it cannot reasonably
be expected to impair the supply of future information in the instant matter, when persons
have already expressed concern for different reasons about providing the information.
Therefore the Defendant cannot rely on the exemption with respect to the inability to obtain
future information in the instant matter.
53. However, it appears to me that this exemption would be more appropriately applied in
circumstances where voluntary information is provided to an authority, and disclosure under
the FOIA would in turn discourage persons from voluntarily supplying that type of
information in the future in other matters. In other words, the question is: if the information
is disclosed in the instant matter would it reasonably pose more than a possibility or a small
risk of harm in the future supply of information of a similar nature to the police? In my
opinion, there is such a risk.
54. Having upheld the exemption in the instant matter under section 32, it does not automatically
mean that all matters communicated to the police in the conduct of an investigation would
fall under the exemption and no documents may be disclosed in the future since any decision
by the public authority, is still subject to, the overriding public interest provision of section
35 of the FOIA and the factual matrix of each matter.
The public interest under section 35 of the FOIA
55. Having agreed with the Defendant that the documents are exempt from disclosure under
sections 28 (1) (c), 30 and section 32 the overriding public interest for disclosure must still
be considered. Section 35 of the FOIA states:
“Notwithstanding any law to the contrary a public authority shall give access to an
exempt document where there is reasonable evidence that significant-
Page 23 of 30
(a) Abuse of authority or neglect in the performance of official duty; or
(b) Injustice to an individual; or
(c) Danger to the health or safety of an individual or of the public; or
(d) Unauthorised use of public funds.
Has or is likely to have occurred or in the circumstances giving access to the document
is justified in the public interest having regard both to any benefit and to any damage
that may arise from doing so.”
56. In Ashford Sankar v Public Service Commission19, at paragraphs 17 and 22, Narine JA
held the following in relation to section 35:
“17. Clearly the intention of the framers of the Act was to promote disclosure of
information held by public authorities to the public, as opposed to suppressing or
refusing access to information. The presumption is that the public is entitled to access
the information requested unless the public authority can justify refusal of access under
one of the prescribed exemptions specified under sections 24 to 34 of the Act. Even
so, under section 35, although the information requested falls within one of the
specified exemptions, the public authority is mandated to provide access where there
is reasonable evidence that abuse of authority or neglect in the performance of official
duty or injustice to an individual, danger to the health or safety of the public, or
unauthorised use of public funds, has, or is likely to have occurred, and disclosure of
the information is justified in the public interest….
22. It seems to be that having regard to the object of the Act as expressed in section 3
and the obvious bias in favour of providing access to information, there is an onus on
a public authority which is refusing access to a document on the ground of public
interest to comply strictly with the requirements of sections 23 and 27 (3). The
respondent failed to comply with the clear provision of the Act to provide proper
reasons for its refusal, so as to enable the appellant to make an informed decision as to
whether or not he would challenge the refusal by way of judicial review. In these
circumstances it is clearly undesirable that the respondent should be permitted to
provide new reasons, or to add to, or augment vague or insufficient reasons originally
19 Civ Appeal 58 of 2007
Page 24 of 30
advanced for refusal of access. In my view, to do so will ultimately frustrate the clear
purpose of the Act, which is to permit the public to access information unless refusal
of access can be brought within one of the exemptions specifically set out in the Act,
and adequate and intelligible reasons are provided for such refusal.” (Emphasis added)
57. Further in Caribbean Information Access , at paragraph 38, it was held that:
“It is to be noted that section 35 mandates the public authority to consider and override
any initial assessment of any claim to exemption, where, any of the first four conditions
in section 35 exist and/or where “in the circumstances giving access to the document
is justified in the public interest having regard both to any benefit and to any damage
that may arise from so doing.”
58. The responsibility of the decision maker in relation to section 35 was described by
Boodoosingh J in Nicholas Cumberbatch v The Minister of National Security20at
paragraph 22 as:
“The decision maker must therefore show, by the reasons it advances, that it applied
its mind to whether any of the factors in (a) to (d) of section 35 were met or whether
“giving access to the document is justified in the public interest having regard both to
any benefit and to any damage that may arise from doing so.”
59. Therefore section 35 permits disclosure of information otherwise exempted and the burden
of proving that it is not in the public interest to disclose the information lies on the Defendant.
Once the decision maker forms the view that the requested information is exempt, the onus
is on it to make a disinterested assessment of the requested information against the backdrop
of the criteria in section 35. In other words the exemption will stand unless there are public
interest factors which favour disclosure and which outweigh identifiable public interest
considerations which favour non-disclosure.
20 CV 2014-03041
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60. In the instant case, while the Defendant provided his response by letter dated the 15th June
2016 to the Claimant, the said letter was not presented to the Court to determine if the
Defendant applied section 35 of the FOIA.
61. In any event, the Court is still required to exam the public interest considerations. What are
the public interest considerations which favour disclosure? In my view one such factor is the
Claimant’s right to pursue a remedy on behalf of her son. The documents in issue concern
voluntary statements given by persons concerning the assault on the Claimant’s son during
the police investigation. In this jurisdiction in Curtis Ramjitsingh v Estate Management
and Business Development Company Limited21, Rajkumar J held at paragraph 36:
“If the information requested had been exempt however, and the issue of the public
interest did fall for determination, I consider that injustice to an individual as referred
to in that section, should not be interpreted restrictively. It must be relevant to a
consideration of whether injustice has occurred in the circumstances…”
62. Rajkumar J, further held at paragraph 38:
“38. Further, the public interest must include the right of the individual to (a) access
to the civil justice system…”
63. In the Australian case of Director General, Department of Families, Youth and
Community Care v Department of Education and Jillian Perryman22, Ms Jillian
Perryman, a teacher was assaulted by a minor while she was a work. The Department of
Families, Youth and Community Care was the guardian of the minor and it had objected to
the Department of Education disclosing the management systems of the school to Ms
Perryman who needed the information to determine her options in pursuing legal redress.
The Information Commissioner of Queensland upheld the Department of Education to
disclose the documents even though the Department of Families objected on the basis that it
was personal information. The Information Commissioner after weighing the public interest
21 CV 2014-01458 22 Information Commissioner Qld 97002 unreported 18th February 1997
Page 26 of 30
to disclose and not to disclose held that the public interest included the right of the individual
to be treated fairly and to pursue legal redress.
64. The Defendant submitted that if the documents are deemed exempt the Claimant cannot state
that there was a denial of access to civil justice since the Claimant’s son was present when
he was injured, therefore he was aware who were present in order to make a decision if to
initiate any claim in negligence. It was also submitted that the Claimant’s son also has the
option to subpoena the said persons to provide evidence if the need arises.
65. I do not agree with the Defendant’s submission. The Claimant’s son suffered a significant
blow to his health resulting from the attack and as such he would be entitled to compensation
for any wrong that may have been committed against him. The Claimant is desirous of
seeking legal advice to determine if she can pursue a civil action for the wrong committed
against her son. The statement of Nicholas Rampaul identified some of the persons who
attacked him. However, it was clear from the said statement that due to manner of the attack
he was not able to see or identify all the persons who were involved in the attack. In particular
Nicholas Rampaul said in his statement to the police with respect to the attack on the 18th
November 2014:
“On Tuesday 18th November 2014 I went to school. Around 12:00 midday, during
lunch time I was in class 3 P at the Benediction Block and I was about to leave class
to look for one of my friends when my classmates MICHAEL SEETAHAL and
MATTHEW MONDESIR said “ we love you Rampaul” and proceeded to hug me. I
told them to get off me. They remained hugging me and told other classmates and other
students who were inside of 3 P to come and hug me as well. About five (5) minutes
of them hugging me, others came and began to hug me. And as more time passed other
people came and began to hug me. I was just standing there and I could not do anything
because MICHAEL SEETAHAL and MATTHEW MONDESIR was holding me
down, hugging me so tight and holding my hands. I did not want them to hug me or
touch me. I was feeling pretty suffocated. All of a sudden I felt a kick to my balls. I
told them to let go of me. Everyone that was hugging me, let go and went back to what
they were initially doing. After about ten (10) minutes I started feeling a lot of pain in
Page 27 of 30
my balls. I could hardly sit down so I kept moving about and changing my position
how I was sitting.”
66. With respect to the attack on the Wednesday 19th November 2014 Nicholas Rampaul
described the incident in his statement to the police as:
“At the time I was talking to Joshua Persad, age 14 years, he was also standing by the
whiteboard. Aaron Harricharan and TARANDATH HARRIPERSAD was (sic) in
class talking and JELANI MAITHLAND was also in class. JARELLE STEADMAN
age 14 years, he was in the room around by the teacher’s desk. As the lights went out
a group of guys ambushed me and began to punch me on my arms and back and
shoulders. I felt two kicks to my balls and I fell to the floor in pain. When I was being
punched I heard JARELLE STEADMAN laughing and the guys who ambushed me
was laughing as well. When I fell to the floor a short while after the lights were turned
on. The lights were turned on about two minutes after I fell to the ground. The punching
and kicking lasted for about to three minutes. When the lights were turned on I was in
pain and I did not notice if there was anyone else beside the guys who were in the room
from before. I managed to get up from the floor and as I stood up, Joshua Persad said
“I didn’t attack you.”
67. In my opinion, given the factual matrix of the instant case, the Claimant has a legitimate
need to ascertain the identities of all the persons involved in inflicting this attack on her son
and in the absence of the documents, the Claimant’s son may not be able to identify his
attackers or substantiate any claim that may exist, whether it be negligence or any other
possible civil claim.
68. Further, this incident took place at a school compound. The scope of any proposed claim
may be wider than just the persons who attacked the Claimant’s son. Therefore a thorough
examination of the requested documents will be necessary to determine if there may be a
case against persons in authority who could have been negligent in their supervisory
capacity. In my opinion the Claimant has a reasonable basis for seeking to establish whether
a legal remedy may be available to her son in respect of the loss attributable to the incident
Page 28 of 30
and I consider that the disclosure of the documents would assist the Claimant and her
attorneys at law in evaluating whether a remedy is available or worth pursuing.
69. I am also of the opinion that there is a public interest in having persons who are culpable
held responsible for their actions. In my opinion, the disclosure of the documents would
assist in ascertaining those culpable for the assault against Nicholas Rampaul. Without
ascertaining those culpable for this act of violence against the Claimant’s son, the public at
large would be affected since the incident which occurred could and may repeat itself should
the persons culpable not be held responsible for their actions.
70. Further I also recognise that there is a public interest in enhancing the public perception of
the police service. The Defendant contends that if the documents are disclosed it would
prejudice the continued conduct of the investigation of the instant complaint and it would
discourage persons from voluntarily providing information in a police investigation once
they know that there is a possibility that their identity would be revealed. However, there
was no evidence that the information which the Claimant has requested is a threat to the
national security of the country. In my opinion any negative fall out by the disclosure of the
documents would be neutralized by a positive public perception that even if criminal charges
are not laid aggrieved members of the public can still examine the option of pursing their
civil remedies for any loss from such incidents with the benefit of the police statements. In
any event, the Defendant has already revealed the identities of some of the minors since the
entire statement of Nicholas Rampaul was disclosed. In saying this however I am very
mindful that there may be occasions such as the investigations of homicides when the public
interest favours the non-disclosure of the documents but each matter must be examined on a
case by case basis.
71. What are the public interest considerations not to disclose? The Defendant has contended
that WPC Persad was concerned with the justice of the matter. In particular, the effect
disclosure would have on her obtaining sufficient evidence to properly decide whether a
charge should be laid or not since there is a reluctance by persons coming forward to assist
in criminal investigations if there is a possibility that their identities would be revealed. There
is some merit in this point since the Defendant has stated that the investigation of the
Page 29 of 30
complaint is still on going. However, in the instant matter WPC Persad had already stated
that three parents have already declined to consent to their minor children being interviewed.
She has not stated how many other persons are willing to be interviewed but may change
their minds if the documents are disclosed. Therefore it is reasonable to assume that there
this may very well be the extent of the statements in the instant investigation. In any event,
the reluctance by persons coming forward to assist in criminal investigations cannot be an
overall reason which the Defendant can hide behind for non-disclosure of documents in a
criminal investigation.
72. Finally the Defendant disclosed the entire statement of Nicholas Rampaul which contained
the names of some of the minors who were involved in the incident. That information is now
a matter of public record since the said statement was annexed to the affidavit of WPC
Persad. The Defendant having revealed the identity of some minors cannot reasonably expect
the Court to weigh heavily in favour of non-disclosure, any information closely related to
the said minors.
73. I therefore find that the combined weight of the public interest factors in favour of disclosure
in the instant matter sufficiently outweigh the public interest for non-disclosure.
Costs
74. While the award or costs is discretionary I award costs to the Claimant in the instant matter
since the Defendant failed to comply with the provisions of section 23 of the FOIA; the
Defendant changed the reason for not providing the requested documents during the duration
of the instant matter and the Claimant had no recourse but to institute the instant action to
obtain the requested documents.
75. I also order the Claimant’s costs to be assessed pursuant to Parts 67.2 and 67.12 of the Civil
Proceedings Rules (see Court of Appeal judgment in Nizam Mohammed v The Attorney
General of Trinidad and Tobago23).
23 Civ Appeal 75 of 2013
Page 30 of 30
Order:
76. It is declared that the Defendant has breached his statutory duty in section 15 of the FOIA to
take reasonable steps to enable the Claimant to be notified of the approval or refusal as soon
as practicable but in any case not later than 30 days after the day on which the request was
made.
77. It is declared that the Claimant is entitled to access the requested information pursuant to the
Claimant’s FOIA application.
78. The Defendant is to pay the Claimant’s costs to be assessed by the Court in default of
agreement.
Margaret Y Mohammed
High Court Judge
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