T&TEC ordered to provide policy on high-tension power lines on private property

A T&TEC crew conducts repairs on power lines on the corner of Pembroke and Duke streets in Port of Spain on May 29. - File photo by Faith Ayoung

THE Trinidad and Tobago Electricity Commission (T&TEC) has been given 14 days to provide information on its policy on installing high-tension power lines over private property.

Justice Frank Seepersad gave the order in a ruling on October 15. The judge found T&TEC breached its statutory obligations under the Freedom of Information Act (FOIA) when it failed to respond to a request by Dr Fayard Mohammed.

Mohammed had filed a private law claim after T&TEC installed high-tension power lines on his private property.

He was told by the state that there was a policy for doing so, but this was not disclosed, forcing him to get the information through a freedom of information request. Justice Seepersad is also presiding over that matter.

Dr Mohammed then applied for judicial review after T&TEC did not issue a decision within the 30 days of his request on September 26, 2024, as required by law.

In his ruling, Seepersad found that the commission’s delay and later refusal —based on claims of sub judice and “fishing expedition”—were unlawful and unsupported by any valid exemption under the FOIA.

Justice Seepersad said, “There is simply no statutory exemption made for the sub judice rule or for the prevention of fishing expeditions.

“Having considered the response to the applicant’s FOI request, this court also holds the view that the sub judice rule and the prevention of fishing expeditions, the two reasons advanced by the respondent for refusing access, were positions which were devoid of merit and did not amount to justiciable reasons for the non-provision of the requested information.”

In deciding the case, Justice Seepersad said T&TEC’s failure to provide any substantive decision within the statutorily-prescribed time period was a breach of the FOIA, was unreasonable and irrational.

“Administrative inefficiency and/or the lack of resources cannot be used as a defence for non-compliance with mandatory statutory obligations.

“The breach of statutory obligations violates public trust, erodes accountability, transparency, and ultimately, undermines the entire legislative scheme of the FOIA.”

Justice Seepersad declared that T&TEC violated Sections 13, 15, and 23 of the FOIA by failing to notify Dr Mohammed of its decision within the prescribed time, failing to provide written reasons for refusal, and breaching his legitimate expectation that his request would be processed lawfully and fairly.

“The applicant had a legitimate expectation that the public authority would follow the law and discharge the obligations imposed by the FOIA, and that legitimate expectation was frustrated by the actions and/or omissions of the respondent.”

Justice Seepersad also rejected the commission’s arguments that the application constituted an abuse of process or that Dr Mohammed failed to exhaust alternative remedies, while also dismissing T&TEC’s claims of nondisclosure.

“The respondent’s attempt to shift procedural blame onto the applicant is rather unfortunate and amounts to a disingenuous deflection from its statutory noncompliance.”

The judge added, “It must be understood that requested information is often required for advancement or institution of litigation, and time is, in those circumstances, of the essence. “Therefore, it would be unfair and disproportionate to curtail the advancement of any such position by mandating that an applicant is obligated to seek recourse to the Ombudsman before invoking the court’s jurisdiction.

“Applications under the FOIA should never be viewed as ‘litigation tactics’, but rather, they are expressions of a citizen’s right to access information held by public bodies.

“The entire scheme of the FOIA is oriented towards ensuring that aggrieved persons can gain access to documents and information held by public bodies, and reliance on that statutory scheme to achieve its fundamental goal cannot be properly be described as a ‘parallel tactic’ or ‘oppressive litigation’.”

In directing T&TEC to provide the information and granting the declarations sought, the judge also ordered that it pay Dr Mohammed’s costs. Dr Mohammed was represented by Farai Hove Masaisai and Chelsea Edwards. Senior Counsel Keith Scotland, Asha Watkins-Montserin and Keisha Kydd-Hannibal appeared for T&TEC.