About this case:

• Citation:
  [2023] IEHC 585
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the Court of Appeal, Mr Justice Garrett Simons determined that a distinguishing feature of the case was that the Information Commissioner sought to leave undisturbed one of his own findings, creating “the risk that the impugned finding would simply be replicated in any fresh decision”.

Background

The appellant made a request to the Central Bank of Ireland pursuant to the Freedom of Information Act 2014 for the disclosure of records relating to the daily trading volume of three listed financial instruments or shares.

The Central Bank refused the request, and following an unsuccessful application for an internal review, the appellant applied to the Information Commissioner to review the decision.

On 10 May 2023, the Information Commissioner upheld the refusal on grounds that the disclosure was prohibited under s.42 of the 2014 Act by a ‘Supervisory Directive’, and that the records contained confidential personal information relating to an individual and confidential financial information relating to to a firm regulated by the Central Bank, and so fell within the exclusion under Part 1(b)(i) of Schedule 1 of the 2014 Act.

The appellant appealed to the High Court on a point of law pursuant to s.24 of the 2014 Act.

The High Court

Following the issuing of the appeal, the Information Commissioner indicated to the appellant and to the High Court that the review decision was partly premised on a factual error, in that the investigator thought that the financial instruments or shares were regulated by another European regulator, rather than the Central Bank.

Accordingly, the investigator mistakenly concluded that the disclosure of the records would be prohibited by a ‘Supervisory Directive’ within the meaning of the Central Bank Act 1942. The Commissioner invited the court to set aside the decision, and to remit the entire matter for reconsideration. The appellant objected, preferring that the High Court would determine all issues relating to the disclosure of the records.

Mr Justice Simons considered that the public interest requires that statutory bodies, such as the Commissioner, should be prepared to concede legal proceedings at an early stage where appropriate, resulting in a saving of time, costs and judicial resources.

Observing that the concession made by the Commissioner was limited to acknowledging that one ground for upholding the decision was not well-founded, the court noted that the Commissioner did not concede that the records should be disclosed, being of the opinion that there were additional grounds advanced by the Central Bank upon which the disclosure could be refused which he did not consider as his belief was that disclosure was prohibited by reference to s.42.

The Commissioner submitted that his office should be given the opportunity to consider the other potential grounds of refusal, and that it would be inappropriate for the High Court to determine those issues at first instance by reference to Molyneaux v. Financial Services and Pensions Ombudsman [2021] IEHC 668.

Mr Justice Simons contemplated that those submissions would have force if not for the fact that the Commissioner had also relied upon a second ground of refusal, the ‘confidential financial information’ ground, in respect of which no concession was made.

The court expressed that it was possible that the Commissioner would either reconsider the ‘confidential financial information’ ground or would continue to rely on it, and whilst “the principle of res judicata may not apply with full force and effect in respect of the Information Commissioner (cf. Chubb Financial SE v. Financial Services and Pensions Ombudsman [2023] IEHC 74), it is not unreasonable to expect that there would be consistency in decision-making”.

Noting the submissions of counsel for the Commissioner that if the Commissioner did rely on the ‘confidential financial information’ ground the appellant could appeal to the High Court, Mr Justice Simons stated that “it is undesirable that there should be repeated appeals in respect of the same request for the disclosure of records”.

Having regard to the stance of the Commissioner in respect of this ground and the likelihood that an order for remittal might result in a refusal of disclosure on similar grounds again, the court considered that “it is in the interests of justice that the ‘confidential financial information’ issue be determined now as part of the appeal proceedings”.

Conclusion

The court concluded that the appellant was entitled to pursue his appeal in relation to the ‘confidential financial information’ ground, and if successful on appeal, the matter would likely be remitted to the Commissioner to allow his office to determine the additional grounds for refusal which were not yet the subject of a determination by the Commissioner.

Mr Justice Simons further directed that the Central Bank would be joined as a notice party to the proceedings.

Dickie v Information Commissioner [2023] IEHC 585