About this case:

• Citation:
  [2019] IEHC 195
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Remitting the matter to the Information Commissioner for reconsideration, Mr Justice Garrett Simons said that the decision mistakenly presumed UCC was required to justify refusal of access, and misinterpreted or misapplied the threshold for “competitive prejudice” under the Freedom of Information Act 2014.

Background

In January 2017, Raidió Teilifís Éireann (RTÉ) made a request to University College Cork for certain information pursuant to the Freedom Of Information Act 2014 (as amended).

The records sought consist of a finance contract (in effect, a loan agreement) between the European Investment Bank and UCC.

The information relates to existing credit facilities between UCC and other financial institutions; the rate of interest payable under the finance contract; and certain financial covenants to be observed by UCC as borrower.

In April 2017, referring to the exemption under section 36(1)(b) of the FOI Act 2014, UCC decided that the disclosure of the information sought would “prejudice the competitive position of private third parties in the conduct of their business, would result in a material financial loss to those organisations and would decrease the likelihood of meaningful engagement by private firms willing to partner with the University. This would discourage such agencies/companies from working with UCC in the future which would, in turn, have a detrimental effect on the University’s ability to fulfil its objects and to combine with external private bodies for that purpose”.

UCC said that the public interest arguments in favour of release were “outweighed by the arguments against release”, and that the public interest in this instance was “better served by exemption of the records”.

Thereafter, RTÉ applied for an internal review of the decision. The FOI Internal Review Board concluded “the records in question were commercially sensitive and that section 36(1)(b) had been applied correctly”, and the President of UCC signed a decision letter stating that the recommendation of the Internal Review Board had been accepted and the original decision upheld.

The Decision of the Information Commissioner

Pursuant to section 22 of the FOI Act 2014, RTÉ exercised its right of review to the Information Commissioner.

The Information Commissioner noted that UCC had not pointed to any specific information contained in the records at issue that, if disclosed, could reasonably be expected to give rise to harm. In this regard, he said that in determining whether access could have an adverse effect, there must be adequate grounds for such an expectation at the time of the decision to refuse access, and the mere possibility of some adverse effect was not sufficient.

Finding that UCC had not met the burden of proof to show that it was justified in refusing access under s.36(1)(b), the Information Commissioner held that UCC was not justified in its decision to refuse access to the records sought. The information Commissioner said that s.36(1)(b) did apply to references to third party companies (i.e. not UCC or EIB) in one of the records sought.

High Court

Mr Justice Garrett Simons explained that UCC had adopted the position that the records should be released in redacted form, but that when UCC had made its formal submission on the review before the Information Commissioner – it had been resisting disclosure of the documents in their entirely. The redacted version of the finance contract was produced by the EIB after those submissions, but Mr Justice Simons said the Information Commissioner was required to consider all of the material before him and this included the redacted version of the finance contract and would have allowed the Information Commissioner to identify with precision the information which it was sought to exempt from disclosure. 

UCC’s appeal to the High Court was brought pursuant to s.24 of the FOI Act 2014, which Mr Justice Simons explained was an appeal on a point of law – therefore it was necessary for UCC to persuade the court that the Information Commissioner had erred in law.

Mr Justice Simons was satisfied that the Information Commissioner’s decision exhibited a number of errors of law.

Firstly, Mr Justice Simons said the decision “mistakenly takes as its starting point a presumption in favour of disclosure which required UCC to justify the refusal of access”. In this regard, Mr Justice Simons considered, inter alia, the judgment of the Court of Appeal in Minister for Communications Energy and Natural Resources v. Information Commissioner [2019] IECA 68 (delivered after the hearing in this case), concluding that the Information Commissioner’s decision in the present case exhibited a similar error.

Secondly, Mr Justice Simons said the decision “misinterprets and/or misapplies the threshold for the “competitive prejudice” exemption under section 36(1)(b) of the FOI Act 2014”.

Section 36(1)(b) states that an “a head shall refuse to grant an FOI request if the record concerned contains…financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation”.

Mr Justice Simons explained that there are two limbs to the test under s.36(1)(b), and that the threshold applicable to the second limb – “could prejudice” – is one of the lowest standards prescribed under the FOI Act 2014, that the threshold does not have to reach the “reasonably be expected” standard. Mr Justice Simons said that in the Information Commissioner’s decision, reference to the perspective of UCC was erroneously confined to the first of the two limbs of the section – exhibiting a number of errors of law. This erroneous conclusion meant that the separate question under s.36(3) of whether the public interest was in favour of disclosure was not considered.

In light of his findings, Mr Justice Simons proposed to remit the matter to the Information Commissioner to reconsider.

• by Seosamh Gráinséir for Irish Legal News