Secret Filing Cabinets

 “The Applicant, Devant Maharaj, is not a stranger to the courts of Trinidad and Tobago. He has filed five High Court actions in relation to his career as an officer of the National Lotteries Control Board (NLCB). The complaint common to all the actions is discrimination and unfair treatment.”

These were the opening lines of a 56-page judgment delivered by Justice James Aboud on the last day of the court term. It had to compete with the historic visit of the President of Uganda for our emancipation celebrations and the judgment in Panday’s case against the Integrity Commission and hence (understandably) did not receive adequate media coverage.

Important public interest issues resolved in this judgment were therefore not brought to the attention of the public and I intend to devote my next two columns to this judgment with a view to educating the public about the development of the law. Today, I shall deal with the Freedom of Information aspect of the case as it relates to the long-standing protocol in the public service that junior officers must pass any correspondence through (or “u.f.s.” as it called) their Head of Department. Does this practice apply to applications made under the Freedom of Information Act (FOIA) as well?

Maharaj, the President of the local chapter of the Global Organisation for People of Indian Origin (GOPIO), is a prominent social and political activist. He is also an executive member of the Maha Sabha. He had previously won an historic court battle when he successfully challenged the exercise of a veto by Prime Minister Patrick Manning that blocked his appointment to act in the post of deputy director of the NLCB.

Maharaj tried to gain access to documents pertaining to what he felt were illegal attempts to stifle his career advancement by applying directly to the Statutory Authorities Service Commission (SASC) for relevant information. The independent SASC insisted that Maharaj forward such applications via the NLCB itself – in other words, his employer should have the right to know that such information is being sought. To try and access the information direct from the SASC was in breach of the established ‘protocol regarding the channeling of correspondence’.

The court stated that ‘Maharaj complains that he is subject to political victimization and that his career prospects inside the NLCB are severely compromised. The uncontradicted allegations suggest that there is some sort of conspiracy on the part of senior NLCB officers to secretly deprive him of promotion prospects. The terms of his FOIA request indicate that he is working in a vacuum, starved of information as to who is bypassing him and why.’

Maharaj pointed out that he would have had no need to apply for information direct to the SASC if he was being given access to same by his employer, the NLCB. In ruling against the SASC on this point, and finding the protocol of channeling information did not apply to applications under the FOIA, the court reasoned that “If an employee of a public authority had suspicions of fraud originating within his authority and sought information that might expose the fraud, is it right or proper that the documentation that proves the fraud should be directed to the employee via the person against whom the allegation of fraud is made? Citizens are likely to be more cautious or reluctant in utilizing the FOIA if their applications will come to the knowledge of third parties, whether they are within their own organizations or generally’.

The judge creatively ruled that “The FOIA contemplates an information highway built to accommodate two-way traffic; it does not contemplate any lay-byes, merging lanes, or fly-overs. The Applicant would have been especially concerned about the confidentiality of his correspondence. His relations with the Head of the NLCB and its Chairman are marked by distrust and antagonism. There is no evidence to contradict the applicant’s complaint that he receives hostile treatment from the NLCB. His relationship with Mr Lee Sing is counterproductive and unsatisfactory, to say the least”.

Bureaucratic practices of the past must now therefore yield to the dawn of a new culture of unfettered access to information. The FOIA is a ballistic missile that can usher in a new culture of transparency and openness. It gives access to the hitherto secret filing cabinet of the oppressor and artificial bureaucratic resistance to access can be dealt with by timely judicial intervention. Maharaj’s case proves this and should serve as a warning to those in charge.

By Anand Ramlogan 2007-08-11

Next Week: Unveiling Unfairness