Appeal Court blanks Devant on information on Dragon Gas deal

FORMER government minister Devant Maharaj will not get the information related to this country’s Dragon Field gas deal with Venezuela.

On April 30, the Court of Appeal dismissed Maharaj’s appeal after he was refused access to the information and challenged it in the High Court.

In a majority ruling, Justices of Appeal Nolan Bereaux and Peter Rajkumar held that the National Gas Company’s response to refuse access to information “outweighed the public interest” considerations as it could have compromised its negotiating position or jeopardised the existence of the project.

Justice of Appeal Ronnie Boodoosingh disagreed.

In the majority ruling, Rajkumar said, “The access decision contained NGC’s assertion that discussions would contain commercially sensitive information for itself and for the other parties.

“...NGC asserted the potential for derailment of those sensitive multiparty negotiations, still then at a preliminary stage, as a result of disclosure (damage).

“...The disclosure of information in those circumstances is difficult to justify when balanced against the claim by NGC that such disclosure could affect the very continuation of the then-ongoing negotiations.

“The aborting of those negotiations would mean that the possibility of future access to the Dragon field and other Venezuelan gas fields would evaporate.

“The elimination of these alternative supplies of natural gas that were being explored would come to an end. The importance of such an additional supply of natural gas and the fact that it is critical to the economy of this country is not a matter to be lightly dismissed.”

Rajkumar also said NGC had considered the section 35 (of the Freedom of Information Act) balancing exercise to determine if the information sought could be disclosed.

He also noted that some of the information sought did not exist, while there was evidence that many of the issues raised by Maharaj “were raised by journalists.

“In many cases, answers have been supplied. The FOIA, therefore, is not the only source of information or source of the ability to ensure accountability and transparency in relation to this project.”

Maharaj had asked for, among a list of things, copies of all agreements, memoranda of understanding and/or contracts between Venezuela’s state-owned gas company, Petróleos de Venezuela, and the TT Government and/or NGC.

He also wanted to know whether the TT Government and/or NGC obtained legal advice on the potential of international impact/sanctions as a result of the gas deal with Venezuela, copies of documents on the cost of the construction of the pipeline and who will be paying for it; the procurement process for coming to the deal; and the cost per unit of gas TT was obliged to pay.

According to NGC’s evidence, the majority of the requests were for documents that did not exist at the time of the request, as there were “only discussions and negotiations exploring the possibility of arriving at an agreement with respect to a possible deal.

“It cannot be said to be unreasonable that at the stage of discussions and negotiations which had not culminated in any agreement that the public interest considerations alleged by the appellant may not yet have been relevant or of sufficient weight as to risk jeopardising the eventual existence of the project by allowing access to the information requested.

“In any event, however, it would not be unreasonable for NGC to conclude that their disclosure could compromise negotiations or undermine any competitive advantage or negotiating position that may be held by it.

“Given the importance of the project as indicated by NGC, a legitimate balancing exercise conducted by it could reasonably have been weighed against disclosure, given that the termination of the project as a result of disclosure could readily outweigh any advantage in obtaining any information about it at that stage,” Rajkumar said.

Maharaj was represented by Anand Ramlogan, SC, Dr Che Dindial and Ganesh Saroop. The NGC was represented by Russell Martineau, SC, Kerwyn Garcia, SC, and Vishma Jaisingh.