OPM ordered to reconsider position on disclosing Darryl Smith report

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OPM ordered to reconsider position on disclosing Darryl Smith report

The Office of the Prime Minister (OPM) has been ordered to reconsider its decision to refuse to disclose a report on the settlement of a sexual harassment claim against former Sports Minister Darryl Smith brought by his former personal assistant.

High Court Judge Nadia Kangaloo, in a ruling last week, upheld a lawsuit brought by former government minister and social activist Dr Devant Maharaj.

Justice Kangaloo ruled that the decision to deny Maharaj access to the report and the settlement agreement was illegal, irrational, unfair, and constituted a breach of the Freedom of Information Act (FOIA).

Her decision in the case does not mean that Maharaj is automatically entitled to the disclosure as the OPM may still deny the request once it conducts a comprehensive reconsideration of it based on advice given by her in the judgment.

Stating that she could not supplant her own decision in place of the OPM, Justice Kangaloo said: “The Court declines to do so as it accepts that in this particular case, the Defendant is indubitably better placed to reconsider its decision in light of the myriad contextual lenses through which the Defendant should look to respond to the FOIA request.”

“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,” she added.

Maharaj first sought disclosure of the information, seven months after Prime Minister Dr Keith Rowley terminated Smith’s ministerial appointment on April 10, 2018, for “improperly interfering in the public service”.

Rowley’s decision came shortly after an investigative newspaper report on a $150,000 settlement of an Industrial Court case brought by Smith’s former personal assistant Carrie-Ann Moreau.

Moreau was alleging that she was wrongfully dismissed and claimed sexual misconduct from Smith. The settlement featured a non-disclosure agreement.

Rowley first transferred Smith to the Ministry of Housing before he was terminated a day later. Rowley then appointed a three-member committee to investigate 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 were not allowed to respond to allegations levelled against them.

In response to the lawsuit, the Permanent Secretary in the OPM Maurice Suite claimed that the report was exempt as it had the potential to harm the reputations of affected parties.

Suite also claimed that disclosure would impair the ability of a public authority to obtain information in confidence in the future.

In determining the case, Justice Kangaloo ruled that Suite failed to provide evidence on how public interest issues favouring and against disclosure were considered.