OPM must reconsider access to Darryl Smith sexual harassment report

THE Office of the Prime Minister (OPM) has been ordered to reconsider giving access to a report into the settlement of a sexual harassment claim against former sports minister Darryl Smith.

Former government minister and social activist Devant Maharaj requested access.

Maharaj first sought disclosure of the information, under the Freedom of Information Act (FOIA), seven months after Dr Rowley terminated Smith’s appointment on April 10, 2018.

Rowley’s decision came shortly after an investigative newspaper report about the $150,000 settlement of an Industrial Court case brought by Smith’s former personal assistant. She alleged she was wrongfully dismissed and claimed sexual misconduct by Smith. The settlement featured a non-disclosure agreement.

Rowley then appointed a three-member committee to investigate and report on the circumstances of the settlement.

The committee, consisting of former permanent secretary Jackie Wilson, Women’s Institute for Alternative Development (WINAD) executive director Folade Mutota and attorney Elaine Green, submitted its report. But it was never made public, as it was allegedly prepared in breach of natural justice, as people against whom allegations were made were not allowed to respond.

In response to the lawsuit, the OPM claimed the report was exempt, as it had the potential to harm the reputations of affected parties.

However, Justice Nadia Kangaloo quashed the decision to refuse disclosure or deny access to the report and the 2018 settlement agreement between Smith and his former personal assistant, Carrie-Ann Moreau.

She also held that the decision to refuse to disclose the report or deny Maharaj access to it and the agreement was unfair, illegal, irrational and a breach of the FOIA.

“It is settled law that the Freedom of Information Act shines as a beacon to enable public access to information almost as a default position with limited exemptions.

“Even if a cloak of darkness shrouds such exemptions, the lantern of public interest must nonetheless be hoisted and the exemptions illuminated so as to ensure that transparency, public accountability and good governance see the light of day.”

In her written reasons, Kangaloo said the court had no evidence to support a claim by the OPM’s permanent secretary, Maurice Suite, that it was concerned with protecting the interest of third parties.

“The court finds that any consideration of any public interest factors is completely absent from the negative access decision,” she said. She also noted that the public-interest factors Suite said had been considered appeared to be an “afterthought.”

In her decision, Kangaloo gave a checklist for the OPM to consider in reconsidering Maharaj’s request.

She also addressed a submission by the State that Maharaj was not directly affected by the failure to provide access to the report and settlement agreement, saying she did not view him as a “mere busybody” seeking to insert himself into business that did not concern him.

“Had the court found him so, he would not have been granted leave to file this claim.

“Rather, the court finds the claimant to be a member of the public in whose interest request for information under the FOIA may be made and who legitimately made such a request.”

The OPM was ordered to pay Maharaj’s costs for senior and junior counsel.

After Maharaj filed his claim, a legal officer with the Ministry of Sport tried unsuccessfully to participate in the matter. Kangaloo refused permission for the legal officer to be made an interested party.

In her application to intervene, the officer claimed she was subject to criticism in the report and her reputation would be adversely affected if it were disclosed.

Maharaj was represented by Anand Ramlogan, SC, Jared Jagroo, Natasha Bisram and Dr Che Dindial.

The OPM was represented by Fyard Hosein, SC, and Ryan Grant.