Court: OPM must reveal lawyers, consultants paid for Paria CoE

Marsha Walker -

The High Court has ruled that the Office of the Prime Minister (OPM) must disclose the names of all persons and entities paid legal, consultancy, or other fees in connection with the commission of enquiry (CoE) into the Paria diving tragedy.

In a judgment delivered on October 14, Justice Joan Charles declared that the refusal of the permanent secretary to the Prime Minister to release the names under the Freedom of Information Act (FOIA) was unlawful and in breach of the right of access to information. The court granted activist Marsha Walker a declaration of entitlement and issued an order of mandamus compelling the OPM to release the names within seven days.

Walker, represented by Senior Counsel Anand Ramlogan, argued that transparency and accountability demanded disclosure of how public funds were spent during the commission’s work. Her FOIA request, made April 24, 2023, was denied on grounds that the information constituted “personal information” under Section 30(1) of the Act and that disclosure could expose payees to criminal targeting.

In its defence, the state, led by Senior Counsel Russell Martineau, maintained that no document containing the requested details existed and that the financial data was protected by privacy exemptions.

Justice Charles rejected the state's arguments, finding that the OPM had breached its duty of candour by failing to disclose the government’s longstanding practice of naming attorneys and consultants who received public funds. She noted that similar information had been previously released by other state agencies without adverse consequences.

“The public interest in transparency outweighs any asserted privacy concern,” Charles wrote, adding that the FOIA’s purpose is to ensure open government and public accountability, particularly where public expenditure is involved.

“Undisputedly, disclosure of fees paid to attorneys-at-law by public authorities including the Office of the Attorney General and other government ministries have been previously disclosed under the FOIA by said public authorities with no objection to such disclosure on the grounds cited by the defendant or any other ground relied upon by the defendant in this case,” the judge wrote in her ruling.

She added, “In my view, the defendant ought to have disclosed to the court the now well-established practice by the state bodies to disclose the names of attorneys-at-law who were paid legal fees by the state.

“The consequences of these failures by the defendant (breach of the duty of non-disclosure coupled with the breach of Section 21), served to undermine its assertion that there exists a sufficient public interest in non-disclosure of the requested information.

“The fact that fees paid to named attorneys-at-law have been routinely disclosed by public bodies was relevant, pertinent evidence which the defendant had a duty to disclose, especially where ministries of this government had consistently done so.

“It is extremely unlikely, in my view, that the information regarding the fees paid to attorneys-at-law was unavailable. I did not accept this assertion by the defendant in the circumstances.

“The object of the FOIA is to promote open and transparent government especially when public funds have been expended.

“The right to access information under this regime is therefore only to be limited by exemptions necessary for the protection of the public interest. The public interest in this matter is in favour of disclosure since it is reasonable and involves the expenditure of public funds.

“The practice of the state and public authorities to disclose fees paid to attorneys-at-law retained by them over the past years have not given rise to any attacks on these individuals by the criminal element.”

She also said the state failed to provide evidence to support its claim of criminal attacks on attorneys after their fees for state briefs were disclosed.

Also representing Walker were Jayanti Lutchmedial, Natasha Bisram, Jared Jagroo and Aasha Ramlal.

Appearing for the state were Amirah Rahaman, Raquel Le Blanc, Brent James and Fazana Ali.

This ruling follows a condemnation by the Court of Appeal of the former government's failure to disclose its exemption policy for returning nationals during the covid19 pandemic in 2020.

In June, Paria Fuel Trading Company Ltd revealed it paid over $8.4 million in legal fees for representation at the commission of enquiry (CoE) into the 2022 diving tragedy, but withheld the exact fees paid to each lawyer involved.

In a letter dated June 10, attorneys from the law firm Johnson, Camacho & Singh (JCS) wrote to Freedom Law, the firm representing former Petrotrin employee Anthony Dopson. Dopson filed a freedom of information (FOI) request in January asking for a breakdown of legal fees paid by Paria during the 2023 enquiry into the February 25, 2022, incident, in which five LMCS divers died after being trapped in a pipeline at Pointe-a-Pierre. One survived the ordeal.

In response, JCS provided six redacted cover letters and invoices totalling $8,439,492.70. The documents listed the names of the attorneys who represented Paria – Gilbert Peterson SC, Jason Mootoo SC, Gretel Baird, Thane Pierre, and Sebastian Peterson – but did not indicate how much each was paid.

While in opposition, Kamla Persad-Bissessar, now Prime Minister, threatened to take legal action against the then-PNM government for refusing to disclose the names of all the attorneys who receive millions in legal fees.