An application had been filed by an environmental non-governmental organization to the National Environmental and Planning Agency requesting veterinary reports for the Dolphin Cove facilities in Ocho Rios and Montego Bay. The Agency stated that some documents could not be disclosed on the basis of caution that it may be exempt and that it would consult a third party to determine if the document should released. The Agency consulted the company whose information was being requested, which objected to the disclosure. Influenced by the objected of the affected party, it denied access. The claimant argued that the information was not exempt as it was so accepted by the Agency in previous communications and it had previously granted access to similar reports. The documents did not contain information concerning the commercial interests of any person or organization and contained information of no commercial value.
Counsel for JET submitted that, pursuant to section 32 (6)(a) of the Act, burden of proof is on NEPA as a public authority to prove that the information requested in exempt. [...]
Counsel for the respondent NEPA, readily accepted that the Act is definitive in the use of the word ‘would’ which is quite different from the word ‘may’ as used by NEPA in refusing to grant access to the information sought.
It would appear that, although NEPA had, by their letter dated 29/3/10, to Dolphin Cove, stated in part “... and must inform you that the above report is not exempt under the Act and as such can be disclosed to the public”, NEPA had resiled from that position when Dolphin Cove made an objection. A public authority should never abdicate its responsibility to make a decision which it is required to make under the law, with the expectation that the Tribunal will discharge that responsibility. Where a document is not exempt under the Act, the public authority is obligated to release the document.
The Tribunal concluded that the information sought was not exempt under the law and should be made available to the appellant.