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On 4 December 4 2018 the High Court held that TSTT was a ‘public authority’ under the Freedom of Information Act (the ‘Act’) and therefore subject to the Act’s access and disclosure provisions. Members of the public now have a general right to access TSTT’s official documents, with certain exceptions.
On 15 November 2016 a request was made under section 13 of the Act for the following documents:
(Copyright Sean Morrison/Wired868)
A copy of the hierarchy of the organizational chart showing the positions of the executive management in the TSTT and the salaries paid in respect of each such position;
The stipend being paid to members of the Board of Directors;
An unedited copy of Original Shareholders agreement between Cable and Wireless and Telecommunications Services of Trinidad and Tobago Company; and
An unedited copy of the Deed of Adherence signed by National Enterprises Ltd.
In turn, section 13 provides that:
“(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.”
TSTT refused the request on the basis that they were not a ‘public authority’ under the Act.
Section 4 of the Act generally defines ‘public authority’ by reference to the various arms, agencies and bodies of the State, including Parliament, the Courts and so forth. One of those definitions characterised a public authority as ‘a company incorporated under the laws of the Republic of Trinidad and Tobago which is owned or controlled by the state’.
It is here that the Court found TSTT to be a public authority, by virtue of the state’s control over the telecommunications entity.
(Copyright TT Guardian)
In 1989, the government and Cable and Wireless entered into a shareholders’ agreement whereby the government would own 51% of the shares of TSTT, with Cable and Wireless owning the remaining 49%.
Then in 1999 the government incorporated National Enterprises Ltd (‘NEL’) and vested ownership of three state controlled companies into that entity: TSTT, National Flour Mills and Trinidad Nitrogen Company. In other words, the government’s 51% ownership of TSTT was transferred to NEL.
NEL, in turn, being a publicly traded private limited company of which the government owns 83% of the shares.
The government could directly affect the governance of NEL, and by virtue of the 1989 shareholders’ agreement between itself and Cable and Wireless, could indirectly affect TSTT’s governance by appointing the majority of its directors.
These factors, among others, led the Court to conclude that the government exercised de facto control over TSTT. ‘Control’ which brought it within the meaning of a ‘public authority’ as being ‘a company incorporated under the laws of the Republic of Trinidad and Tobago which is… controlled by the State’.
In sum, TSTT is now subject to the Act and its access and disclosure provisions. The public now has a right to access TSTT’s official documents, subject to the exceptions set out in the Act.
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Dr Emir Crowne is a barrister and attorney-at-law attached to New City Chambers in Port-of-Spain.
Two judgments – both at the High Court, both contradicting each other, and it’s definite that TSTT is a public authority?
Methinks Dr Crowne is jumping the starting pistol a bit. Surely, a senior court has to make a compelling decision.
Cellular Planet v Minister of Public Utilities CV2013-02624 says it is NOT a public authority; Justice
André des Vignes is the deciding judge there.
And in Ravi B Maharaj v TSTT CV 2017- 00619 a judge of the same High Court, of equal rank, decides the opposite. So who is right?
This is a basic principle of the doctrine of precedent…
The law has established that even a private body carrying out public functions is for all purposes, a ‘public body. http://www.bailii.org/ew/cases/EWCA/Civ/1986/8.html (Datafin, 1987).
“Datafin gave rise to what is now termed the “public functions” test. The effect of this test is that all bodies exercising functions of a public law nature are, in principle, susceptible to challenge by judicial review. What matters under the test is the nature of the decision or non-decision in question rather than, per se, the identity of the body under challenge.
The consequence of this test is that apparently non-state private bodies (for example, the managers of a privately-owned psychiatric hospital) have found their decisions subject to judicial review.”
This TSTT issue has been clarified elsewhere, but like everything in Trinidad, it must be challenged and refought to the Privy Council before the lesson sinks in.