This case concerned a Freedom of Information Request by the claimants for access to the following:
The English Language Arts Writing script for the 2018 SEA Exam for their son, JMV; and
Individual scores assigned to JMV for each dimension or sub-category of the Creating Writing/English Language Arts Writing Rubric, that is, Writing Process, Content; Language Use; Grammar and Mechanics; and Organisation.
By letter dated November 8, 2018, the defendant acknowledged receipt of the claimants’ Request. By letter dated January 21, 2019, the defendant provided a response to the claimants’ Request indicating, among other things, that with respect to the request for each component of the marking scheme for the English Language Arts Writing, those documents were the property of the Caribbean Examinations Council (“CXC”), which could not be sued, in certain circumstances, under the Caribbean Examinations Council (Privileges and Immunities) Act.
The claimants were not satisfied with the defendant’s response and applied for judicial review, seeking, among other orders, a declaration that the defendant, as a public authority within the meaning of the Freedom of Information Act (“FOIA”), could not avoid its statutory duty under Section 11 of the FOIA to grant access to official documents held by it in connection with its functions, that is to say, documents within its custody, possession or power, by asserting that the documents were the ‘property’ of CXC and that certain immunities are attached to CXC under the Caribbean Examinations Council (Privileges and Immunities) Act;
In making its determination on the matter, the court considered the following issues:
whether the defendant was a public authority within the meaning of the Freedom of Information Act;
whether the documents and/or information requested in the FOIA Request were within the custody, possession or power of the defendant at the relevant time;
whether the defendant had a duty to engage the Section 35 public interest test in deciding if to disclose the documents and/or information requested; and
whether the defendant’s continued failure and/or refusal to grant access to the documents constituted illegal, irrational and unreasonable conduct under the FOIA.
The court held that the defendant was a public authority within the meaning of the Freedom of Information Act. In determining whether the documents and/or information requested in the FOIA Request were within the custody, possession or power of the defendant at the relevant time, the court agreed with the reasoning of Boodoosingh J in CV 2017-00869: Roger Simon and Anor v The Permanent Secretary of the Ministry of Education and found:
In my opinion, on a literal interpretation of Paragraph 7 of the SEA Agreement, CXC owns the copyright of the examination paper, the materials documents and data produced by it for the SEA Exam. However, under this Paragraph CXC does not own the right of the exam script, which has been submitted by each student who has taken the SEA Exam. It seems to me that each script is the body of work of the individual student, which is unique. In order for CXC alone to own the copyright of the exam scripts after they have been completed by the students, the parents or guardians of the students must provide written approval before the said exam, giving up any rights of ownership of the students work to CXC. However, there was no such evidence in this action…the marked exam script is jointly owned by CXC and the respective student, in the instant case JMV, and this is not a basis for the MOE failing to provide it.
However, the court disagreed that the defendant had a duty to engage the Section 35 public interest test in deciding whether to disclose the documents and/or information requested.
On the basis of the above reasoning, the court held that the failure and/or refusal by the defendant to grant access to or otherwise provide the documents/information requested by the claimants in their Freedom of Information Application was unreasonable, irrational, illegal and amounted to a breach of the provisions of the Freedom of Information Act. The defendant was ordered to pay to the claimants the costs of the action.
Cases referred to:
Roger Simon and Anor v The Permanent Secretary of the Ministry of Education, CV 2017-00869
Caribbean Information Access Ltd v The Minister of National Security, CA 170/2008
B v B [1978] Fam 181 at 186
Lonrho Ltd v Shell Petroleum Ltd [1980]1 WLR 627 at 635
Paul Lai v The Attorney General of Trinidad and Tobago, Civ Appeal No. P 129/ 2012
Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER 935
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B. 223
Judicial Remedies in Public Law 5th ed, Lewis at paragraph 9-07
R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941 at page 945.