REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...

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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

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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

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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.

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(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

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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

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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-

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(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

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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

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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

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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

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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

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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

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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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