Maharaj v National Gas Company: Privy Council confirms review standard for freedom of information appeals in Trinidad and Tobago

The Privy Council has dismissed an appeal by social and political activist Devant Maharaj against the National Gas Company of Trinidad and Tobago's refusal to disclose documents relating to a proposed gas pipeline deal with Venezuela. In doing so, the Board has settled a significant question of principle that had divided the Court of Appeal: whether courts conducting judicial review of a non-disclosure decision under the Freedom of Information Act 1999 ("FOIA") should adopt a review approach or substitute their own objective assessment of the public interest.

Lord Sales, giving the judgement of the Board, held that the review approach is correct. The conclusion was reached on five cumulative grounds. Section 39(1) of FOIA provides that the remedy for an aggrieved applicant is judicial review, and Parliament's choice of that remedy signals an intention to engage standard public law principles rather than a merits appeal. The statute designates the public authority — not the court — as the primary decision-maker, directing its provisions to how the authority should act rather than conferring an independent evaluative function on any reviewing tribunal. The nature of the balancing exercise under the second limb of section 35, which concerns the public interest broadly construed, is a matter for which public authorities possess the constitutional authority, knowledge, and expertise that courts inherently lack. The seniority of the decision-makers contemplated by section 22(1) — responsible ministers, permanent secretaries, chief executive officers — makes it implausible that Parliament intended a court simply to substitute its own view. Finally, section 23's requirement that a refusing authority provide its reasons signals that it is the adequacy of those reasons, not an independent recalculation of the balance, which is the proper subject of challenge.

The Board also addressed the adequacy of NGC's reasons, applying the standard set out in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953. The 6 February 2019 response had to be read alongside the 18 December 2018 request to which it replied. That request, drafted on behalf of Maharaj, set out in considerable detail the public interest factors favouring disclosure — the scale of public expenditure, the lack of transparency around procurement, the environmental implications, and Trinidad and Tobago's engagement with a state under international scrutiny. NGC's response neither disputed those factors nor ignored them; it proceeded on the basis that they were valid but outweighed by the risk of compromising live commercial negotiations with Venezuela and the consequent damage to NGC's negotiating position across both upstream and downstream contracts, as well as the potential withdrawal of Shell as a commercial partner.

Read together, the correspondence was sufficient to demonstrate that the balancing exercise required by section 35 had been carried out. The Board emphasised, however, that this conclusion was heavily fact-specific. Where an applicant does not set out public interest factors in favour of disclosure, or does so only partially, the public authority bears the burden of identifying them itself. The obligation of consideration must be demanding and genuine, but FOIA does not require a public authority to anticipate every conceivable public interest argument that might theoretically be advanced.

The Board was careful to preserve the substantive force of FOIA's transparency objectives. Endorsing the observation of Boodoosingh JA in dissent, it affirmed that transparency, the rule of law, and accountability within state entities generally favour disclosure. The recognition that a review standard governs judicial scrutiny does not diminish those values; it situates their vindication primarily in the decision-making process of the authority itself, reinforced by the rationality review available to the courts.