High Court: DPP loses appeal seeking to prevent disclosure of documents under FOI legislation

About this case:

• Citation:
  [2021] IEHC 752
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment in the case, Mr Justice Garrett Simons held that section 42(f) of the Freedom of Information Act 2014 did not preclude the release of letters sent by the Department to the DPP. Accordingly, the court held that the Department was required to disclose the records.

Background

A journalist with the Sunday Times newspaper sought access to correspondence between certain public bodies and the Department. The journalist wished to investigate attempts made by these bodies, including the DPP, to increase the level of payment for barristers and solicitors in court cases. The journalist also wished to see the Department’s individual replies to these attempts.

The Department decided to refuse access to correspondence with the DPP and the matter was appealed to the Information Commissioner. The principal issue before the Commissioner was whether section 42(f) of the 2014 Act operated to preclude disclose of the documents.

Section 42(f) provided that FOI legislation did not apply to “a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration”.

Further, the 2014 Act provided that copies of any record were deemed to have been created at the same time as an original record. The Commissioner considered these provisions and held that all documents from the DPP to the Department were exempt from disclosure because they were created by the DPP.

However, it was held that the letters from the Department to the DPP were not exempt because they originated from the Department. The Commissioner also ruled that the Department’s letters were “held” by the Department, not the DPP. Accordingly, the Commissioner determined that half of the requested documents were subject to FOI and should be disclosed.

The DPP appealed the Commissioner’s decision to the High Court. The scope of the appeal was limited to the proper interpretation of section 42(f) and whether the requested documents fell within this exemption. The Commissioner’s decision to refuse access to the DPP’s letters to the Department was not in dispute.

The DPP submitted that the 2014 Act did not apply to records created by the DPP or to records created by another body but which were later held by the DPP. It was argued that, since the Department sent correspondence to the DPP, that correspondence was held by the DPP within the meaning of section 42(f).

The DPP argued that, at a general level, many of its files contained information that related to specific criminal cases and were technically not created by the DPP, but by gardaí during the course of investigations. It was argued that a narrow reading of section 42(f) may expose these files to disclosure, which was not the purpose of the legislation.

High Court

The court began by noting that the principal purpose of the Act was to confer a statutory right of access to any record held by a so-called “FOI body”. The court considered Minister for Health v. Information Commissioner [2019] IESC 40, where it was determined that a body “holds” a record if it is lawful possession of the document and is entitled to access the contents of the document.

The Supreme Court also held that a two-stage approach is to be adopted where disclosure is requested. First, a court must determine whether the document was held by the requested body. Second, it must be determined if the requester is entitled to access the document.

The court held that there was “no doubt” that the Department was in lawful possession of the letters to the DPP. As such, both the DPP and the Department had the correspondence in their possession.

The court held that it was “simply incorrect” that the letters were “held” by the DPP as a matter of law. Even though the bodies held records with identical information, they were not the “self-same” records within the meaning of the Act. The Department had no access to the duplicate held by the DPP, so it could not disclose a record held by the DPP, the court said.

It was the clear intention of the legislation that access could not be refused “simply on the basis that it is said to be merely a copy of a record held elsewhere” and “the right to access is not confined to the original”, the court said.

The court held that Minister for Justice v. Information Commissioner [2001] IEHC 35 supported this conclusion. In that case, it was held that duplicate documents held by another FOI body would be accessible.

Mr Justice Simons also considered the DPP’s submission that the purpose of the legislation would be undermined if the Commissioner’s decision was upheld as it would allow disclosure of DPP documents “by the back door.” The court held that the Act contained clear provisions that were designed to prevent the DPP, the Attorney General, the Gardaí and the Criminal Assets Bureau from disclosing sensitive information.

However, nothing in the legislation supported the broader exclusion which was relied on by the DPP. In fact, the court held that the majority of DPP documents would be covered by an exclusion under the Act. As such, there would be no “back door” opening to getting DPP documents.

The court also held that the DPP’s position would lead to a “sweeping exemption” for the Attorney General’s office, which would similarly hold a very large volume of duplicate documents with other Departments.

Finally, the court considered whether making a copy of a document could constitute “creating” a record which was amenable to disclosure. The court considered Minister for Justice v. Information Commissioner where it was held that the DPP had “created” a book of evidence even though all documents in the book were copies. 

The court commented that the judgment was released prior to an amendment to the Act which provided that copies would be deemed to be created at the same time as an original. As such, the court held that it would be “entirely artificial” to treat a person who copied a document as its creator. However, it was not necessary to fully resolve the meaning of “creating” a document in the present case. 

Conclusion

The court dismissed the appeal and affirmed the Commissioner’s ruling that the Department’s responses to the DPP were not held by the DPP within the meaning of the Act.