On 28 September 2026, the High Court presided over by Hon. Justice Nicola Pierre delivered her judgment in relation to a judicial review sought by Attorney-at-Law and Chartered Accountant Christopher Ram as regards the alleged failure of the Commissioner of Information to provide the necessary information requested under the Access to Information Act 2011. The Court found, among others, that:
(a) The Commissioner did not act on the requests within the period stipulated, nor did he communicate to the Applicant an extension of that period, as provided for by the Act;
(b) The Commissioner’s correspondence requiring the Applicant to first approach another public authority did not constitute a determination of the requests;
(c) The Commissioner is deemed to have refused access in respect of each of the three requests; and
(d) The Commissioner failed to perform his statutory function, namely, to process and determine the requests in accordance with the Act.
Background to the case
On 7 March and 12 March 2025, the Applicant made three requests to the Commissioner of Information for information. The first two requests relate to tax payments, revenue receipts and the related accounting treatment under the Petroleum Sharing Agreement between ExxonMobil’s subsidiaries and the Government of Guyana. The third request was about information on operations of the Office of the Commissioner, including annual reports, statistical information and reports submitted to the National Assembly.
The Commissioner acknowledged receipt of the three letters. He, however, demanded proof that the Applicant had requested information on Exxon’s tax liabilities from the public authority that held it. By letter dated 17 March 2026 to the Commissioner, the Applicant disputed that he was required to establish a prior request or refusal by the concerned public entity. In a response dated 24 March 2026, the Commissioner reiterated his position on the matter.
On 27 March 2026, the Applicant wrote to the Permanent Secretary of the Ministry of Natural Resources requesting information on Exxon’s tax liabilities. The letter was copied to the Commissioner. As regards the request for information on whether amounts were included in the Estimates of Revenue and Expenditure for the years 2021 to 2025, and payments to the Consolidated Fund, by letter dated 24 March 2025, the Commissioner again reiterated his position that the information must first be sought from the concerned public authority.
In relation to the Applicant’s request for information about the operations of the Office of the Commissioner, the Commissioner asserted that the request should be made to the relevant statutory public authority, and that his office oversees public authorities. This clearly indicates that the Commissioner did not believe that his office is subject to the provisions of the Act.
In view of the above, on 19 June 2025, the Applicant sought judicial review of the Commissioner’s actions regarding the above-mentioned requests for information under the Access to Information Act.
Conclusion on the exchange of correspondence
The Applicant initially did not provide documentary evidence of his attempts to obtain information from the Commissioner. Instead, he quoted from the various exchanges of correspondence, to which the Commissioner demanded proof. The Court then granted leave for the actual correspondence to be presented to the Court. This was done.
The Court found that ‘the Commissioner’s general denial in his Affidavit in Rejoinder does not create a genuine factual dispute as to the existence or receipt of correspondence which is expressly acknowledged in his own letters, or which he himself authored and upon which he relies’. The Judge concluded that the sending and receipt of the relevant correspondence were established on the evidence before the Court.
Substance of the application
The Applicant argued that the Commissioner received valid requests from him for information but failed to exercise his statutory powers and duties in furtherance of the requests. As a result, the Applicant sought the following relief:
(a) A declaration that the Office of the Commissioner is a public authority within the meaning of Section 2 of the Act;
(b) A declaration that the Commissioner is deemed to have refused access to the information requested pursuant to section 18(3) of the Act;
(c) A declaration that the Commissioner failed to discharge his statutory duty under Section 23 of the Act by failing to provide a statement of reasons for refusal;
(d) An order directing the Commissioner to provide the information requested within 14 days;
(e) Costs; and
(f) Such further other orders as the Court considers just.
Is the Commissioner subject to judicial review?
The Court first considered it unnecessary for a declaration to be made to establish that it has jurisdiction to review the Commissioner’s conduct. It cited Section 43 which provides for the High Court to have such jurisdiction. Section 43(1) also provides for any person aggrieved by a decision of the Commissioner to apply to the High Court for a review of that decision.
Are the reports of the Commissioner’s activities ‘official documents’?
The Court referred to Section 2 of the Act which states that an “official document” is a document held by a public authority in connection with its functions. It then considered that the Applicant’s third request corresponds directly with the statutory reporting scheme outlined in Section 44 of the Act. This requires the Minister to lay, as soon as practicable and no later than nine months after the end of each year, a report on the operations of the Act before the National Assembly. Section 44(3) specifies the information to be included in the report, including, among others: (i) the number of requests made to the Commissioner; (ii) the number of decisions that an applicant was not entitled to access to a document pursuant to a request; and (iii) the number of applications for judicial review of decisions and the outcome of those applications. The information to be contained in the statutory reporting scheme must be collected, compiled and given to the Minister.
The Court held that the documents and reports requested by the Applicant are “official documents” and ‘compellable, whether or not the information concerns the Commissioner, whether or not the documents were prepared by the Commissioner himself or by one of his employees who are provided by the Minister (section 4 of the Act) and whether or not the Commissioner is a Public Authority”.
Is the Office of the Commissioner a public authority?
The Commissioner contended that his office is not a public authority because: (i) it is not expressly included in the definition of “public authority” under Section 2 of the Act; and (ii) the Commissioner is established by Section 5 as an independent statutory-holder and is not subject to the control or direction of the Government or any Minister.
Having considered Sections 5-6 that establishes the Office of the Commissioner, including the appointment and removal of the Commissioner, employment of officers, and salary and conditions of service as determined by the Minister, the Court stated that:
The significance of these provisions is that the Commissioner does not operate as a financially or administratively autonomous institution…The Commissioner does not have an independently constituted budget or independently appointed staff which might ordinarily be expected of an institution institutionally separate from Government.
The Court also examined the definition of “public authority” as contained in Section 2 and noted that it includes a statutory body, a commission established by law, and an unincorporated entity in relation to functions exercised on behalf of the State or which is established by or on behalf of the State. It stated that the Commissioner performs functions expressly conferred by statute and exercises those functions as part of the State’s machinery for providing access to official information; and that the Office of the Commissioner falls within the definition of “public authority”. The Court found that the Commissioner of Information is a public authority within the meaning of Section 2 of the Act.
Deemed refusal under Section 18(3) of the Act
The Court referred to the Applicant’s request for information to Exxon’s tax liabilities to the Government and how those liabilities were discharged. It noted the Applicant’s letter to the Commissioner in which he stated that he had searched diligently publicly available records, including the National estimates for 2021 to 2025, and the annual reports of the Natural Resource Fund, but was unable to locate such information.
The Court identified several sections of the Act, including Sections 16(1), 16(2) and 19(1) which provide for the procedure for making a request to the Commissioner, the identity of the official document, and the obligation of the Commissioner to provide access to the document. The Court found that the Applicant’s request was in conformity with the Act and ought to have been processed. As a consequence, the Court ruled that the Commissioner is deemed to have refused to give access to the information requested by the Applicant.
Conclusion and Orders
Having regard to the above, the following are the main conclusions of the Court:
(a) The Applicant’s three requests for information were valid requests that satisfy the requirement of the Act;
(b) The Commissioner’s correspondence requiring the Applicant to approach another public authority did not constitute a determination of the requests;
(c) The Commissioner did not determine the requests within the prescribed period, nor did he communicate and extension of that period; and
(d) The Commissioner is deemed to have refused access in respect of the three requests.
The Court then issued the following Orders and Declarations:
(a) The Commissioner of Information is a Public Authority within the meaning of the Act;
(b) The Commissioner is deemed to have refused access to the information requested by the Applicant;
(c) The Commissioner shall process and determine each of the three requests by the Applicant in accordance with the Act;
(d) The determinations shall be made within 60 days of the date of the Order; and
(e) If access is refused, the Commissioner by way of a written notice shall provide the Applicant as to the reasons, including the Applicant’s right to apply to the High Court for judicial review.
Discussion