application without notice - afraraymond.net · cl financial limited's audited financial...

Nature of case: (Application for an administrative order: Application for Judicial Review)

THE REPUBLIC OF TRINIDAD AND TOBAGO: IN THE HIGH COU RT OF JUSTICE

Port of Spain

CLAIM NO. CV-2013- octll b '.l..

BETWEEN

AFRA RAYMOND

AND

Advocate Attorney: Kingsley Walesby,

Bar No. WAK2004015

APPLICANTnNTENDED CLAIMANT

THE MINISTER OF FINANCE AND THE ECONOMY

RESPONDENTnNTENDED DEFENDANT

APPLICATION WITHOUT NOTICE

1. The Applicant/Intended Claimant applies to the Court for permission to make a claim for

judicial review of the following decisions of the Respondent:-

a) The continuing refusal and/or failure of the Respondent to make a determination as to

whether to provide the following information requested by the Applicant in his Freedom of •

fnforrnation application dated 8th May, 2012 including:-

1

..

i . CL Financial Limited's audited financial statements for the years 2008-2011 along with

any interim, preliminary, draft or unaudited statements which have been relied upon by

the Minister of Finance.

,.. ii. Any other information or analysis as to the composition of the creditors of CL Financial,

in particular EFPA holders, the dates of repayment and the identities of those whose

investments have been repaid.

(Hereinafter referred to as "The Outstanding Information. '')

b) The continuing· -failure and/or refusal of the Respondent to comply with the formal

provisions of Section 23 (1) of the Freedom of Information Act by providing notice to the

Applicant of the grounds of its refusal to supply the following information to the Applicant

and the sub-section(s) of the said Act upon which it has relied to treat the said documents as

exempt:-

i . The presentation made to Members of Parliament in Septembe-r 2011 as a briefing for

the debate on The Central Bank (Amendment) bill & The Purchase of Rights and

Validation Bill 2011 including copies of all slides, power-point slides, tables, charts,

schedules, text or other information which comprised that presentation.

(Hereinafter referred to as "The Refused Information. '')

2. THE NAME, ADDRESS AND DESCRIPTION OF THE APPLICANT:-

The Applicant is Afra Raymond of Emrond House, Il l Oxford Streett:, Port of Spain.

3. THE NAME, ADDRESS AND DESCRIPTION OF THE RESPONDENTS/INTENDED

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DEFENDANT:-

The Respondent is the Minister of Finance and the Economy of Eric Williams Financial

Complex, Brian Lara Promenade, Port of Spain .

•

4. THE RELIEF SOUGHT:-

1. A Declaration that the continuing refusal and/or failure

determination as to whether to provide the outstanding irit;�;u.....,..,.

illegal, null and void and of no effect

n. An order pursuant to Section 15 of the Judicial Review�..A<��K-i:Mll!e-•

unreasonable delay by the Respondent in making a decision as to whether to provide the

outstanding information to the Applicant.

iii. An order of Mandamus compelling the Respondent to make a determination as to

whether to provide the outstanding information to the Applicant.

IV. An order of Mandamus compelling the Respondent to issue a formal notice to the

Applicant in accordance with Section 23 of the Freedom of Information specifying the

subsection(s) of Section 33 of the said Act pursuant to which the Respondent has refused

to provide to the Applicant the refused information on the grounds that the said

documents are exempt.

v. Alternatively, an order of Mandamus to compel the Respondent to provide the Applicant

with the outstanding and the refused documents.

vi. A declaration !hat the Applicant IS entitled to the outstanding information and the

refused information. 3

vn. Costs.

vm. Pursuant to section 8 of the Judicial Review Act 2000, such further orders and directions

as the Court considers just and as the circumstances warrant.

5. THE GROUNDS'UPON WHICH SUCH RELIEF IS SOUGHT:-

5.1 The Facts upon which the application is made:

5.1.1 By letter dated the 11th May, 2012 the Applicant's Attorney at Law wrote to the Respondent

enclosing the Applicant's application dated the 8th May, 2012 pursuant to Section 13 of the Freedom of

Information Act No. 26 of 1999 and requested that copies of the following documents be supplied to

the Applicant within thirty (30) days of that date in accordance with Section 15 of the said Act:-

i) CL Financial Limited's audited financial statements for the years 2008-2011 along with


the Minister of Finance .

ii) The presentation made to Members of Parliament in September 2011 as a briefing for



schedules, text or other information which co_mprised that presentation.

iii) Any other information or analysis as to the composition of the cn!ditors of CL Financial,



iv) Copies of all declarations filed by the directors and officers of CL Financial Limited and

its subsidiaries under the Integrity in Public Life Act.

4

5 .1.2 By letter dated the 11th June, 2012 having regard to the lack of an acknowledgment or response

from the Respondent the Applicant's Attorney at Law wrote to the Respondent attaching a copy

of the letter dated the 11th May, 2012 and requested a response to same within seven (7) days

failing which it was indicated that the Applicant would apply for judicial rev1ew of the

Respondent's said failure and/or refusal to supply the requested in orma .• • J?.·

5.1.3 By letter dated the 14th August, 2012 the Respondent responded in i ting the follo}Ving:

C tiC Port- o ·

1. That in respect of the request for audited financial statements fur the years 2008-2011

that there were no audited statements and that the Applicant was Jrequired to consult with

the Respondent in order to provide further information so that it could be determined

whether the documents sought were official documents within the meaning of the

Freedom oflnformation Act.

ii. That in respect of the request for the presentation made to Members of Parliament in

September, 2011 as a briefing for the debate on the Central Bank (Amendment) Bill that

the Respondent was of the view that the requested information fell within the exemption

contained in Section 33 of the FOIA and that accordingly the Respondent was unable to

provide the said documents.

iii. That in respect of the request for any other information or analysis as to the composition

of creditors of CL Financial that the Applicant was referred to Section 13(2) of the Act

and was requested to tailor his request so as to comply with this Section. It was also

indicated that the preliminary view of the Respondent was that the requested documents

were likely to be exempt under Section 30(1) of the Act.

·"· That in respect of the request for all declarations filed by the directors and officers of CL .

� Financial Limited and its subsidiaries under the Integrity in Public Life Act that these

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.. documents were secret and confidential and protected from disclosure by the

Commission under Section 20(1) of the Integrity in Public Life Act.

5.1 .4 By letter dated the 21st December, 2012 the Applicant's Attorney at Law responded to the letter

from the Respondent indtcating the following:-

1. That in respect of (i) above that the Applicant was seeking all interim, preliminary, draft

or unaudited statements that were relied upon by the Honourable Mr. Winston Dookeran

at Paragraphs 21.and 22 of his affidavit filed on the 3rd April, 2012 in the High Court in

H.C.A No. 1234 of 2011/CV 2011-01234 Percy Farre/1 & Ors., Clico, Central Bank &

Ors in which he made reference to a $24 billion dollar expenditure of public money.

ii. That in respect of (ii) above the Respondent was requested to indicate under what sub

section of Section 33 of the said Act the Applicant's request had been refused so that he

could fully assess his legal options.

iii. That in respect of (iii) above that the request for the name and number of EFPA holders

and the dates that their investments were repaid was clear and self-explanatory. In the

circumstances, the Respondent was requested to either indicate what further information

it required in order to make a determination or alternatively to indicate whether the

Applicant's request was being granted or refused and if refused, tlhe grounds for same.

5. 1. 5 By pre-action letter dated the 7th March, 2013 the Applicant's Attorney at Law wrote to the

Respondent and the Solicitor General giving advance notice of the Applicant's intended claim

and requesting that either the requested information be provided or alternatively to provide its

reasons for any refusal to do so within seven (7) days failing which the Applicant would apply

for judicial review of the Respondent's decision.

5. 1.6 The Respondent has failed to respond to the letter from the Applicant's Attorney at Law dated 6

2151 December, 2012 or to the Applicant's pre-action letter dated the 7ili March, 2013.

5.1.7 � date the Respondent has failed to make a final determination as to whether to provide the

outstanding information sought in the Applicant's application dated tine gili May, 2012 made

under the Freedom oflnformation Act notwithstanding that the additional information reqtrested ' ,.

by the Respondent in order to make its determination was su �ted �·

i · ·ih � 'Applicant's

Attorney at Law by letter dated 21st December, 2012. The Re

indicate under what sub-section(s) of Section 33 of the Freedom o

in making its refusal to provide the copy of the presentation made

September, 2011 notwithstanding the Applicant's requests for

December, 2012 (hereinafter referred to as "the Refused Informatiol��=-,.._,-

5.2 Decisions were Unlawful:

THE FIRST DECISION

5.2.1 It is contended that the continuing failure and/or refusal of the Respondent to make a

determination as to whether to provide the following outstanding information is illegal,

irrational and of no effect:-

• CL Financial Limited's audited financial statements for the year.s 2008-2011 along with



• Any other information or analysis as to the composition of the creditors of CL Financial,



(Hereinafter referred to as "The Outstanding Information. ")

5.2.2 Section 15 of the Freedom of Information Act states that,

. "A public authority shall take reasonable steps to enable an applicant to be notified of

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..

the approval or refusal of his request as soon as practicable but in any case not later

than 30 days after which the request is duly made. "

5.2.3 Section 15 of the Freedom of Information Act imposes a statutory duty upon the Respondent to

notify the Applicant of its decision as to whether or not it was approving or refusing his request

as soon as p�cticable but in any case within thirty (30) cfays of his request being made. The /

Applicant's Freedop1 of Information application dated the 8th May, 2012 was submitted to the

Respondent by letter dated the 11th May, 2012.

5 .2.4 By letter dated 14th August, 2012 the Respondent requested further information and/or

consultation in respect of the Applicant's request for his information. The Respondent's request

for further information was made m accordance with Section 14 (1) of the Freedom of

Information Act which states that:-

"A public authority shall take reasonable steps to assist any person who -

(a) Wishes to make a request under Section 13; or

(b) Has made a request which does not comply with the requirements of Section 13(2), To make a request in a manner that complies with that section.

(2) Where a request in writing is made to a public authority for access to an official document,

the public authority shall not refuse the request on the ground that the request does not comply

with section 13 (2), without first giving the Applicant a reasonable opportunity of consultation

with the public authority with a view to the making of a request in a form that does comply with

that section. "

Section 13 (2) of the Freedom of Information Act states that,

(2) A request shall identify the official document, or provide sufficient information to enable the

designated officer of the public authority, or an employee of the public authority who is familiar

with the relevant documents, to identify the documents with reasonable effort. "

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5 .2.5 By letter dated the 21st December, 2012 the Applicant responded to the Respondent's letter

dated 14th August, 2012 and provided the extra information and/or consultation that had been

requested by the Respondent in the said letter.

5.2.6 We contend that upon receipt of the letter of response from the Applic

Respo'itdent had a statutory duty under Section 15 of the Freedom of [ntJDffi)aftjU

within thirty (30) days of receipt of the said information whether it

Applicant's request for the said information or alternatively to indicate

further information and/or consultation to make a final determination.

the

5.2.7 Alternatively, we contend that the Respondent had a duty to make a final determination and to

notify the Applicant of same within a reasonable period of time after its receipt of the letter

from the Applicant's Attorney at Law dated the 21st December, 2012 notwithstanding the

expiration of the initial thirty (30) day period. We submit that there has been an unreasonable

delay by the Respondent in making a determination or in notifying the Applicant of same since

receiving the Applicant's letter of response dated the 21st December, 2012.

5.2.8 Section 15 of the Judicial Review Act states that "Where-

(1) (a) a person has a duty to make a decision to which this Act applies: (b) there is no law that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision,

a person who is adversely affected by such failure may file an application for judicial review in respect of that failure on the ground that there has been unreasonable delay in making that decision.

(2) Where- /

(a) a person has a duty to make a decision to which this Act applies; (b) a law prescribes a period within which the person is required to malie that decision; and (c) the person has failed to make that decision before the expiration of that period,

a person who is adversely affected by such failure may file an application for judicial review in respect of that failure on the ground that the decision-maker has a duty to make that decision, notwithstanding the expiration of that period. "

•

5.2.9 We submit that the continuing failure of the Respondent to notify the Applicant of its

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c...

.. ..

determination regarding his request for the outstanding information eiither within thirty (30)

days of the said information being supplied to it by the Applicant's Attorney at Law by letter

dated the 21 st December, 2012 or within a reasonable period of time: thereafter constitutes a

continuing breach of the Respondent's statutory duty under Section 1 5 of the Freedom of

Information Act in respect of which the Applicant is entitled to seek relief from the Court

pursuant to SectiQ� 15 ofthe Judicial Review Act No. 60 of2000. •

5.2.10 It is further contended that the continuing failure and/or refusal of the Respondent to make a

determination as to whether to supply the outstanding information amounts to an abuse of

power and is in breach of the Applicant's legitimate expectation of a substantive benefit and/or

to procedural protection. Fairness requires that the Respondent make a determination as to

whether it intends to provide the outstanding information in accordance with Section 1 5 of the

Freedom of Information Act and the continuing failure and/or refusal of the Respondent to

provide same amounts to a breach of natural justice.

5. 2. 11 It is further contended that the continuing failure and/or refusal of the Respondent to make a

determination is irrational and/or unreasonable and/or illegal in that in failing to make a

determination as to whether or not to provide the outstanding information the Respondent has

taken into account irrelevant considerations and/or failed to take into account relevant

considerations. It is an abuse of power and is unreasonable and has beelil made as a result of the

failure of the Respondent to observe conditions or procedures required by law.

THE SECOND DECISION

5.3 It is also contended that the continuing failure and/or refusal of the Respondent to provide its

reasons for refusing to supply the following information is illegal, irrational and of no effect:-

• "The presentation made to members of Parliament in September, 2011 as a briefing for

the debate on the Central bank (Amendment) Bill and the Purchase of Certain Rights and

Validation Bill 2011 including copies of all slides, power-poi111l slides, tables, charts,

schedules, text or other information which comprised that presentation. "

10

5.3.1 By letter dated the 14th August, 2012 the Respondent indicated that the said information fell

within the exemption contained in Section 33 of the FOIA and that accordingly the Respondent

was unable to provide the requested documents to the Applicant.

.. 5.3.2 We contend that the contents of the said letter of refusal from t e R.

compliance with Section 23 (1) ofthe Freedom of Information Act

"Where in relation to a request for access to a document of a pub!

made under this part that the Applicant is not entitled to access to th

with the request or that provision of access to the document be deferred or that no such

document exists, the public authority shall cause the applicant to be gitven notice in writing of

the decision, and the Notice shall-

(a) State the findings on any material question of fact, referring to the material on which those

findings were based, and the reasons for the decision;

(b) Where the decision relates to a public authority state the name «Jnd designation of the

person giving the decision;

(c) Where the decision does not relate to a request for access to a document which if it existed,

would be an exempt document but access if given to a document in accordance with section

16(2), state that the document is a copy of a document from which exempt information has

been deleted;

(d) Inform the Applicant of his right to apply to the High Court for Judicial Review of the

decision and the time within which the application for review is required to be made;

(e) Where the decision is to the effect that the document does not e.xist or cannot, after a

thorough and diligent search, be located, inform the applicant of his right to complain to the

ombudsman: "

5.3.3 The said refusal by the Respondent to supply the said information did 111ot indicate under what

sub-section of Section 33 of the Freedom of Information Act the Respondent was refusing to

supply the requested information. Such notification was essential so that the Applicant would be

bl to make an informed decision as to whether or not to challenge the Respondent's refusal to •

provide the said information.

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..

5.3.4 Section 33(1) of the Freedom of Information Act contains several different grounds under

which a document to be exempt. The section states that,

A document is an exempt document if-

(a) Its premature disclosure under the Act would be contrary to the public interest by reason

that the disclosure would be reasonably likely to have a substantial adverse effect on the

economy of Trinidad and Tobago , including but not limited to, the premature disclosure of

proposed introduction, abolition or variation of any tax, duty, inten!st, rate, exchange rate

or instrument of economic management;

(b) Its disclosure under this Act would be contrary to the financial interests of the public

authority by giving an unreasonable advantage to any person in relation to a contract which

that person is seeking to enter into with the public authority for the acquisition or disposal

of property or the supply of goods or services;

(c) Its disclosure under this Act, by revealing information to a competitor of the public

authority, would be likely to prejudice the lawful commercial activities of the public

authority;

(d) Subject to sub-section (4), it contains information obtained by a public authority from a

third party who has consistently treated it as confidential and the disclosure of that

information to a competitor of a third party, would be likely to prejudice the lawful

commercial or professional activities of the third party;

(e) Its disclosure under this Act would be contrary to the public interest by reason that it would

disclose instructions issued to, or provided for the use or guidance of, officers of a public

authority on the procedures to be followed or. the criteria to be applied in negotiation,

including financial, commercial and labour negotiation, in the execution of contracts, in the

defence, prosecution and settlement of cases, and in similar activities relating to the

financial property or personal management and assessment interests of the State or of a

public authority.

5.3.5 Under Section 23 (1) oft he Freedom of Information Act the Respondent has a statutory duty to

provide its reasons for any refusal to provide information as part of the notification of the

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decision. The adequacy of the reasons is itself made a condition of the legality of the decision.

The Respondent is therefore required to state in any letter of refusal all of the statutory

reason(s) that it is relying upon in order to refuse to provide the said information. The

Respondent has to date failed and/or refused to comply with its statutocy duty under Section-23 )f

(1) of the Freedom a fin formation Act. ..

53 6 Th I f R fr h R d I l . '1th "" .... r:�n,.., P•3'

o\� the . . e etter o esponse om t e espon ent was a so non-camp 1 �(.!UU � 'J

Freedom of Information Act in that it did not inform the Applic f the fimiings on any

material question of fact, referring to the material on which those fmdjngs w baseq, and the

reasons for the decision. It did not inform the Applicant of his right to ppty1o the High Court

for Judicial Review of the said decision or the time within which the application for review was

required to be made.

5.3. 7 Consequently, by letter dated the 21st December, 2012 the Applicant's Attorney at Law wrote to

the Respondent requesting that it indicate under what sub-section of Section 33 of the Freedom

of Information Act his request had been refused so that the Applicant could fully assess his legal

options.

5.3.8 Furthermore, by pre-action letter dated the 7th March, 2013 the Applicant's Attorney at Law

wrote to the Respondent and the Solicitor General giving advance notice of the Applicant's

intended claim and pointing out that in refusing to indicate upon which sub-section of Section

33 of the Freedom of Information Act the Respondent was relying in refusing to provide the

said information to the Applicant it was in breach of its statutory duty under Section 23 of the

Act to have provided such information at the time of its refusal as part of the notification

process.

5.3.9 ic· date the Respondent has failed or refused to respond to the said letters sent by the

Applicant's Attorney at Law dated the 21st December, 2012 and the ?'h March, 2013. The

Applicant is therefore unable to make an informed decision as to whether or not to challenge the

Respondent's refusal to supply the requested information.

s.:;.1l IS rther contende}l that in failing and/or refusing to provide tllte said information the

Applicant failed to indicate whether any consideration was given to the ·overriding provisions of

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• Section 35 of the Freedom of Information Act which states that,

"Notwithstanding any law to the contrary a public authority .shall give access to an

exempt document where there is reasonable evidence that signifi'Cant-

a) abuse of authority or neglect in the performance of official duty�,..

b) injustice to an individual;

c) danger to the health and safety of an individual or of the public; or

d) unauthorized use of public funds,

has or is likely to have occurred or in the circumstances giving access to the document is

justified in the public interest having regard both to any benefit and to any damage that

may arise from doing so. "

5.3.11 We contend that there is reasonable evidence in the public domain that there was an abuse of

authority and neglect in the performance of official duties by the Directors of CL Financial

Limited and its subsidiaries, CMMB, CID, CLICO and British-American Insurance which

ultimately led to this series of collapses. There is evidence of great injustice to individuals as

numerous policyholders have been constrained to accept repayment of their personal savings

over a twenty year period instead of having immediate access to all of their personal savings

with interest. Furthermore, the granting of access to the requested information is justified in the

public interest having regard to the benefit that will accrue from doing so which exceeds any

potential damage that might otherwise arise from doing so.

5.3.12 Furthermore, in the circumstances of the Applicant's request g1vmg access to the said .

information is justified in the public interest having regard both to the benefits of transparency

in government and the possible public perception of misfeasance in public office and the

resulting damage to the reputation of the Respondent and the Government at large that may

arise from failing to provide the said information. The said failure of the Respondent to indicate

whether the considerations of Section 35 of the Freedom of Information Act were considered in

making its decision to refuse to provide the requested information amounts to an omission to

perform a statutory duty.

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5 .3.13 It is further contended that for the reasons set out hereinabove the aforesaid decision of the

Respondent to refuse to provide the said infonnation was irrational and/or unreasonable and/or

illegal in that the Respondent took into account irrelevant consideratio111:s and failed to take into

account relevant considerations. The aforesaid decision was an abuse of power and w

unreasonable and was made as a result of the failure of the Responde t t6 oD'Serv

procedures required by law. •I··· ·

6. THE APPLICAN T'S ADDRESS FOR SERVICE:

In the care of Mr. Kingsley Walesby, #lA Lord street, San Fernando and in Port of Spain is in

the care of Mr. Darrell Allahar, Veritas Chambers, # 19 St. Vincent Street, Port of Spain.

7. WHETHER AN ALTERNATIVE FORM OF REDRESS EXISTS AND, IF SO, WHY

JUDICIAL REVIEW IS MORE APPROPRIATE OR WHY THE ALTERNATIVE HAS

NOT BEEN PURSUED.

No alternative form of redress other than judicial review exists.

8. DETAILS OF ANY CONSIDERATION WHICH THE APPLICANTS KNOW THE

RESPONDENTS HAVE GIVEN TO THE MATTER IN QUESTION IN RESPONSE TO

A COMPLAINT MADE BY OR ON BEHALF OF THE APPLICANTS:-

8.1 By letter dated the 11th May, 2012 the Applicant's Attorney at Law w>rote to the Respondent

e closing the Applicant's application dated the 8th May, 2012 pursuant to Section 13 of the Freedom of

Information Act No. 26 of 1999 and requested inter alia that copies of the ftOIIowing documents be

supplied to the Applicant within thirty (30) days of that date in accordance with Section 1 5 of the said

Act:-

i. CL Financial L;mited's audited financial statements for the years 2008-2011 along with

15

• any interim, preliminary, draft or unaudited statements which have been relied upon by


ii. The presentation made to Members of Parliament in Septembe-r 2011 as a briefing for



schedules, text or other information which comprised that presentation.

iii. Any other information or analysis as to the composition of the creditors of CL Financial,



iv. Copies of all declarations filed by the directors and officers of CL Financial Limited and

its subsidiaries under the Integrity in Public Life Act.

8.2 By letter dated the 11th June, 2012 having regard to the lack of an acknowledgment or response

from the Respondent the Applicant's Attorney at Law wrote to the Respondent attaching a copy of

the letter dated the 11th May, 2012 and requested a response to same within seven (7) days failing

which it was indicated that the Applicant would apply for judicial review of the Respondent's said

failure and/or refusal to supply the requested information.

8.3 By letter dated the 14th August, 2012 the Respondent responded indicating 11he following:-

1. That in respect of the request for audited financial statements for the years 2008-

2011 that there were no audited statements and that the Applicant was required to

consult with the Respondent in order to provide further information so that it

could be determined whether the documents sought were official documents

within the meaning of the Freedom oflnformation Act.

16

11. That in respect of the request for the presentation made to Members of

Parliament in September, 2011 as a briefing for the debate on the Central Bank

(Amendment) Bill that the Respondent was of the view that the requested

information fell within the exemption contained in Secti_pp�33 er the f lA and

that accordingly the Respondent was unable to provid the said doe · nts.

111. That in respect of the request for any other in forma · 8

composition of creditors of CL Financial that the

Section 13(2) of the Act and was requested to tailor hi

with this Section. It was also indicated that the preliminary view of the

Respondent was that the requested documents were likely to be exempt under

Section 30(1) of the Act.

IV. That in respect of the request for all declarations filed by the directors and

officers of CL Financial Limited and its subsidiaries under the Integrity in Public

Life Act that these documents were secret and confidential and protected from

disclosure by the Commission under Section 20(1) of the Integrity in Public Life

Act.

8.4 By letter dated the 21st December, 2012 the Applicant's Attorney at Law responded to the letter

from the Respondent indicating the following:-

1. That in r�spect of (i) above that the Applicant was seeking all interim, preliminary, draft .-'

r unaudited statements that were relied upon by the Honourable Mr. Winston Dookeran

at Paragraphs 21 and 22 of his affidavit filed on the 3rd April, 2012 in the High Court in

H.C.A No. 1234 of2011/CV 2011-01234 Percy Farrell & Ors v Clico, Central Bank &

Ors in which he made reference to a $24 billion dollar expenditUJre of public money.

11. � That in respect of (ii) above the Respondent was requested to indicate under what sub-

17

• section of Section 33 of the said Act his request had been refused so that he could fully

assess his legal options.

111. That in respect of (iii) above that the request for the name and nlllmber of EFPA holders

and the dates that their investments were repaid was clear and self-explanatory. In the

circumstance�, the R�spondent was requested to either indicate what further information /

it required in order to make a determination or alternatively to indicate whether the

Applicant's request was being granted or refused and if refused, tlhe grounds for same.

8.5 By pre-action letter dated the 7Th March, 2013 the Applicant's Attorney at Law wrote to the

Respondent and the Solicitor General giving advance notice of the Applicant's intended claim and

requesting that either the requested information be provided or alternatively to provide its reasons

for any refusal to do so within seven (7) days failing which the Applicant would apply for judicial

review of the Respondent's decision.

8.6 The Respondent has failed to acknowledge or to respond to the letter from the Applicant's Attorney

at Law dated 21st December, 2012 or to the Applicant's pre-action letter dated the 7Th March, 2013.

8.7 To date the Respondent has failed to make a final determination as to whether to provide the

outstanding information sought in the Applicant's application dated the 8th May, 2012 made under

the Freedom of Information Act notwithstanding that the additional information requested by the

Respondent in order to make its determination was supplied to it by the Applicant's Attorney at

Law by letter dated 21st December, 2012. The Respondent has further failed to indicate under what

sub-section(s) of Section 33 of the Freedom oflnformation Act it has relied in making its refusal to

provide the copy of the presentation made to Members of Parliament in September, 2011

notwithstanding the Applicant's requests for same by letter dated the 21st December, 2012.

9. WHETHER ANY TIME LIMIT FOR MAKING THE APPLICATION HAS BEEN

EXCEEDED AND, IF SO, WHY.

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9.1 The time limit for making the application has not been exceeded and there has been no

unreasonable delay in respect of the challenge to the decision of the Respondent which has been

made promptly. The application has been made within three months of the said letter of refusal an�-· has been made promptly in the circumstances.

9.2 y letter dated the 11th May, 2012 the Applicant's Attorney at Law

enclosing the Applicant's application date_d the 8th May, 2012 pursua

Freedom of Information Act No. 26 of 1999 and requested that copies of

be supplied to the Applicant within thirty (30) days of that date in accordan

said Act.

9.3 By letter dated the 14th August, 2012 the Respondent responded requesting further information

and/or consultation in respect of the outstanding information requested by the Applicant. The

Respondent further refused to provide the refused information on the grounds that the said

information was exempt under Section 33 of the Freedom oflnformation Act.

9.4 By letters dated the 2151 December, 2012 the Applicant responded to the Respondent's letter dated

the 14th August, 2012 providing additional information in respect of the outstanding information

pursuant to the Respondent's request. The Respondent was further requested to indicate upon which

sub-section of 33 of the Freedom of Information Act it was relying to refuse to provide the refused

information.

9.5 By pre-action letter dated the 7th March, 2013 the Applicant's Attorney at Law wrote to the

Respondent calling upon the Respondent to make a final determination :as to whether or not it

intended to provide the outstanding information. It was also pointed out that the Respondent's letter

of response dated the 14th August, 2012 did not comply with the provisions of Section 23 of the

Freedom of Info�ation Act and the Respondent was requested to indicate under what sub

section(s) of Section 33 of the Freedom of Information Act the Respondent was treating the refused

documents as exempt.

9.6 The continuing failure and/or refusal of the Respondent to make a final determination as to whether

to orovide the outstanding information and to comply with the provisions of Section 23 of the

Freedof!l of Information A'tt in refusing to provide the refused information are continuing decisions

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on the part of the Respondent and this application has been instituted promptly in the light of the

continuing failure and/or refusal of the Respondent to respond to the Applicant's letter dated the

21st December, 2012 and the pre-action letter dated the 7th March, 2013.

10. WHETHER THE APPLICANT IS PERSONALLY OR :QIRECTLY AGGRIEVED BY

THE DECISIONS ABOUT WHICH THE COMPLAINT IS MADE. /

The Applicant is personally and directly aggrieved by the decision about which this complaint is

made.

11. WHERE THE APPLICANT IS NOT PERSONALLY OR DIRECTLY AGGRIEVED,

WHAT PUBLIC OR OTHER INTEREST TilE APPLICANT HAS IN THE MATTER.

NOT APPLICABLE. The Applicant is personally and directly aggrieved by the said decision.

12. THE NAME AND ADDRESS OF THE APPLICANTS' ATTORNEYS.

The Law Office of Mr. Kingsley Walesby, #lA Lord Street, San Femando.

Dated this 26-r-day of March, 2013

I certify on behalf of the Applicant that the facts stated are true to the best of my knowledge,

information and belief.

J.. An affidavit in support accompanies this application ..

t---'-- -- \ ----------------�----AFRA RAYMOND

Kingsley Walesby #lA Lord Street San Fernando

Attorney at Law for the Applicant/Intended Claimant

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TO: The Registrar, High Court of Justice, Knox Street, Port of Spain

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