Privy Council rules on approach to public interest balancing under FOIA

15/04/26

Under the second limb of s 35 of the Freedom of Information Act 1999 (“FOIA”) of Trinidad and Tobago, a public authority must give access to a document that is otherwise exempt where “in the circumstances giving access to the document is justified in the public interest having regard both to any benefit and to any damage which may arise from doing so”.

The appellant requested documents from the National Gas Company of Trinidad and Tobago (“NGC”) under FOIA relating to a proposed gas pipeline deal with Venezuela. NGC refused, relying on various exemptions and stating that disclosure would prejudice live negotiations and harm NGC’s and Shell’s commercial position.

The appellant applied for judicial review of the decision, arguing principally that NGC had failed to conduct the public interest balancing exercise required by s 35 of FOIA. The High Court dismissed his application, and the Court of Appeal dismissed his appeal. The appellant appealed to the Privy Council.

The Board first addressed an important unresolved question of principle: what is the proper approach of a court on judicial review of a s 35 balancing exercise? Lord Sales held that it was a normal review approach (treating the authority’s decision as lawful provided it was rational and did not infringe any other general public law requirement) and not an objective approach (the court deciding for itself where the public interest balance lies).

The Board then applied that approach to the facts. The refusal letter was to be read together with the original request, in which he had set out public interest factors favouring disclosure. Read in that way, the Board was satisfied that the NGC had addressed the public interest balancing exercise by taking into account all relevant public interest factors on each side. It could not be said that the decision was irrational or unlawful. The Board also held that the refusal letter, when read together with the original request, had provided adequate reasons. The appeal was therefore dismissed.

Lord Sales did, however, make clear that the case turned on its facts. An applicant would not always set out the relevant public interest factors in its request, in which case “it will be incumbent on the public authority to consider what public interest factors are in play on both sides of the issue of disclosure and to take them all into account”.

The judgment can be read here.