Factual and Procedural Background
The case concerns alleged non-compliance with Part II of the Freedom of Information Act 1999 (“the Act”) in Trinidad and Tobago. Part II, which came into force on 30 April 2001, obliges each “public authority” to publish certain informational statements promptly and to update them annually. Section 7(4) also obliges the responsible Minister to publish reasons in the Gazette whenever a public authority fails to comply.
On 1 March 2005 the Plaintiff, a Member of Parliament, filed an application for judicial review asserting that 167 public authorities had failed to publish the initial statements, that 37 had failed to publish annual updates, and that the Minister had failed to publish reasons for those defaults. The application sought (i) a declaration that the continuing omissions were unlawful and (ii) an order compelling publication of reasons within seven days. Because more than three years had elapsed since the alleged breaches first arose, the Plaintiff also sought an extension of the three-month time limit prescribed by section 11(1) of the Judicial Review Act 2000.
The application first came before Judge Jones, who refused leave on 25 October 2005, holding that the Plaintiff had not proved any breach and that the claim was out of time with no sufficient public-interest justification for an extension. The Court of Appeal allowed the Plaintiff’s appeal on 27 September 2006, granted leave, and later issued written reasons on 15 May 2009. The Defendants (comprising the Prime Minister and seventeen other Ministers, collectively “the Government”) appealed to the Judicial Committee of the Privy Council (“the Board”), where the present opinion is delivered by Judge Scott.
Legal Issues Presented
- Whether, on the undisputed facts, there was a prima facie breach of section 7 of the Act by the identified public authorities and of section 7(4) by the Minister.
- Whether the Plaintiff’s application for judicial review was barred by delay under section 11 of the Judicial Review Act 2000, or whether an extension of time should be granted.
- Whether the Court of Appeal erred in granting leave for judicial review notwithstanding the first-instance refusal.
Arguments of the Parties
Plaintiff's Arguments
- The prolonged failure by numerous public authorities to publish the required statements, and by the Minister to publish reasons, constitutes an ongoing breach of statutory duty.
- The maxim res ipsa loquitur applies: after nearly four years of non-publication the breach is self-evident; it is for the authorities to justify delay.
- Because the breach is continuing, the time limit in section 11(1) does not bar the claim; alternatively, strong public-interest considerations warrant an extension.
Defendants' (Government's) Arguments
- The Plaintiff failed to show that it had become “practicable” for each public authority to publish, so no breach was established.
- The application was brought outside the three-month period prescribed by section 11(1) and should be dismissed for undue delay.
- Granting relief would not materially advance public access to information and therefore lacked sufficient public importance to justify an extension of time.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Board rejected the Government’s contention that evidence of practicability was lacking. Judge Scott reasoned that, after nearly four years of inaction, the inference of breach was irresistible; if publication were still impracticable, the public authorities bore the burden of explaining why.
The Board agreed with the Court of Appeal that the Plaintiff had established a prima facie case of neglect under section 7(4). It noted the absence of any evidence contradicting the Plaintiff’s affidavit and observed that more than eight years had now passed since Part II came into force, indicating “a continued flouting by the executive of the will of the legislature.”
Regarding delay, the Board held that the trial judge had given insufficient weight to the fact that the alleged breaches were continuing and of clear public importance. The statutory duties under the Act promote governmental transparency, and their non-performance affects the public at large. Consequently, the extension of time granted by the Court of Appeal was proper.
Holding and Implications
APPEAL DISMISSED. The Privy Council affirmed the Court of Appeal’s decision granting the Plaintiff leave to pursue judicial review and awarded costs against the Defendants.
Implications: The decision allows the substantive judicial review to proceed, compelling the Government to answer allegations of persistent non-compliance with the Freedom of Information Act. Although the opinion sets no new precedent, it underscores the judiciary’s readiness to enforce continuing statutory duties that advance transparency, even when applications are filed long after the statutory deadline.