Judge: Foreign Affairs Ministry, Children's Life Fund Authority acted unlawfully

Justice Robin Mohammed. -

A HIGH COURT JUDGE has ruled that the Ministry of Foreign and Caricom Affairs and the Children’s Life Fund Authority acted unlawfully by failing for years to meet statutory obligations under the Freedom of Information Act.

In separate rulings on December 15 and 16, Justice Robin Mohammed granted activist Hershael Ramesar several declarations, ordering the publication of statements from 2016 to 2021.

In the latest ruling involving the Foreign Affairs Ministry, Mohammed found that the ministry breached mandatory publication duties under the Freedom of Information Act (FOIA) for the period 2016 through 2021 and rejected arguments that a later update cured those violations.

Ramesar had filed a judicial review claim challenging the ministry’s failure to publish annual statements detailing its functions, records, and policies as required by law. The application was filed in June 2022, after the ministry acknowledged it had not published the required statements for several years.

In a detailed judgment, Mohammed held that sections 7, 8, and 9 of the Freedom of Information Act impose “annual and continuing obligations” on public authorities. He said the ministry’s April 6, 2022, correspondence amounted to a “clear and unequivocal admission” that it failed to comply with those duties from 2016 to 2021.

“The administrative challenges and the covid19 pandemic, while explaining the failure, do not negate the existence of the statutory breach,” the judge ruled, noting that the legislation provides no general suspension of obligations because of inconvenience or external events.

“The FOIA does not provide for a general suspension of its obligations due to administrative inconvenience or external events.”

The judge also found that the minister’s later publication of reasons under section 7(4) of the Act did not cure the noncompliance. Mohammed said the reasons addressed only part of the period and applied solely to section 7, leaving breaches under sections 8 and 9 untouched. He further ruled that no reasons were ever lawfully published for the years 2016 to 2018.

Rejecting the ministry’s argument that its July 15, 2022, publication of an updated statement rendered the case academic, Mohammed said such an approach would undermine the purpose of the act. Annual publication, he said, allows the public to track changes in an authority’s structure and decision-making over time.

“To hold that the publication of a single, up-to-date statement after years of non-compliance absolves a public authority of its past and continuing breaches would be to sanction the flouting of statutory obligations,” the judge stated.

He further ruled that the ministry breached the law by failing to publish required material in both the Trinidad and Tobago Gazette and a daily newspaper, finding the two methods of publication are “complementary and not interchangeable.”

“The Gazette serves an important official function, while newspapers remain a primary and practical means by which citizens access information on a daily basis. Failure to utilise both channels frustrates the purpose of ensuring broad and effective public access to information.”

Mohammed granted multiple declarations confirming that the ministry’s failures from 2016 to 2021 were unlawful and contrary to the policy of the Freedom of Information Act. He also issued orders of mandamus compelling the ministry to publish the outstanding information in compliance with sections 7, 8, and 9 within 30 days of the order. The ministry was ordered to pay costs to Ramesar, with costs to be assessed if not agreed.

In the matter involving the Children’s Life Fund Authority, the judge rejected the authority’s arguments that ministerial approval and executive policy excused the breaches.

Mohammed declared that the authority breached its statutory duties between 2016 and 2021, ordering it to publish the outstanding information within 30 days.

Ramesar brought the judicial review claim in February 2023, arguing that the authority failed to publish annual statements required under sections 7, 8, and 9 of the Freedom of Information Act, legislation designed to promote transparency and accountability among public bodies. The Children’s Life Fund Authority conceded it did not publish the statements for several years but maintained that it was unable to do so without ministerial approval.

Mohammed rejected that defence, holding that executive policy and the absence of ministerial approval cannot override a mandatory statutory obligation imposed by Parliament. “A public authority cannot avoid its statutory duties by pointing to the failure of another arm of the executive,” the judge said, adding that to accept such an argument would allow the effectiveness of the law to be defeated by inaction.

The court also dismissed the authority’s claim that publishing a single, updated statement in 2022 cured earlier noncompliance. Mohammed ruled that the Freedom of Information Act imposes annual obligations and that each year’s publication serves a distinct public purpose. Accepting the authority’s position, he said, would create a “perverse incentive” for public bodies to ignore the law for years and later claim compliance through a single disclosure.

As part of the order, the court issued multiple declarations that the authority acted unlawfully and ultra vires the Act for the period 2016 through 2021. It also granted orders of mandamus compelling the authority to publish the required statements and make documents available to the public in accordance with the law within 30 days.

The authority was further ordered to pay Ramesar’s legal costs, with costs to be assessed if not agreed by February 9, 2026.

Attorneys Jagdeo Singh, Vashisht Seepersad and Savitri Samaroo represented Ramesar. Michael Quamina, SC, and Leah Abdulah represented the authority, while Maria Belmar-Williams and Akeenie Murray represented the Foreign Affairs Ministry.