Andrew McKeown BL

About this case:

• Court:
  Supreme Court
• Judge:
  Ms Justice Marie Baker

The judgment of the court in both cases was delivered by Ms Justice Marie Baker. The matters have been remitted to the Information Commissioner.

Background

Ireland is the owner of the fibre optic cable infrastructure known as Metropolitan Area Networks (MANs) developed under the Regional Broadband Programme of the Department of Communications, Energy and Natural Resources, which constitutes an important State-owned asset. Telecom operators utilise MANs to provide telephone and broadband services to their customers on commercial terms.

In 2009, following a tendering process, E-Nasc Éireann Teoranta (eNet) entered into an agreement with the Department to operate the wholesale business of providing access to MANs to retail telecoms operators.

Gavin Sheridan, a journalist, sought a copy of a contract relating to the State’s fibre-optic broadband network, and had been refused. In response to the Information Commissioner’s request for observations made by the decision-maker, it was submitted that the Concession Agreement was “particularly commercially sensitive” and fell therefore within the Freedom of Information Act 2014 s.36, and did not fall for release. The factual basis for this assertion was that the release of those records “could prejudice” eNet, and “might result in a material financial loss” to it.

In a lengthy decision, the Commissioner directed the release of the Concession Agreement minus certain schedules that he deemed exempt. The Minister for Communications appealed to the High Court pursuant to s.24(1)(a) of the Act

Mr Justice Seamus Noonan found that the Information Commissioner had adopted the correct approach to the record. The Minister appealed, and the Court of Appeal delivered its judgment reversing the decision of the High Court.

The judges considered that the High Court had erred in concluding that a refusal to disclose records required justification. The difference between the parties on the interpretation and application of the presumption under s.22(12)(b) stems in part from the decision of Ms Justice Fidelma Macken in Rotunda Hospital v Information Commissioner [2011] IESC 26.

The Information Commissioner appealed to the Supreme Court.

Supreme Court

The Commissioner argued that there was nothing unclear about the provisions of s.22(12)(b), which provide that a “decision to refuse to grant” access to a record is presumed not to be justified. In Rotunda Hospital, Ms Justice Macken described that as a “very clear statement which, on its face, appears to apply to all decisions”, but went on to cast some doubt on the literal meaning of the phrase and how it might work in practice.

In her judgment, Ms Justice Baker noted that to say that there is a “right of access” to records under the Freedom of Information Act 2014 misrepresents the position: “the right exists but is one tempered by the existence of exemptions”.

Ms Justice Baker’s opinion centred on the Freedom of Information Act 2014 s.22’s balancing test concerning the justification of a decision refusing disclosure in the context of the public interest. She found that a public body’s finding that its records are exempt from disclosure under the Act does not automatically mean they cannot be disclosed. Such a decision must be justified by reasons. The head of the FOI body must explain why the public interest does not justify release of the document.

The statutory presumption means that, in the case of s.36(3), “the head of the FOI body must ask the public interest question, the head’s approach to that question is open to scrutiny, and the starting point is that the onus lies on him or her to justify so that the reasons given must be sufficiently cogent to explain and justify the approach taken”.

The “starting point” is that a decision to refuse is not justified unless justifying reasons are provided. A departure from that must be justified by reason of the plain terms of ss.36(1)(b) and 22(12). Ms Justice Baker agreed with counsel for the commissioner that ss.35(3) and 36(3) require the public body to justify a refusal.

The judge noted the decision of Mr Justice Frank Clarke, in F. P. v Information Commissioner [2009] IEHC 574, where he pointed out that the exemptions are “to be interpreted restrictively and applied sparingly” as otherwise refusal might become the rule rather than the exception and could frustrate the primary objective of the Act.

Ms Justice Baker said that Court of Appeal was wrong to endorse the comments of Ms Justice Macken without reference to the Interpretation Act 2005 s.5. She said that a court should not lightly depart from the literal words in a statute, citing Kadri v Governor of Wheatfield Prison [2012] IESC 27.

The justice agreed with the arguments made by counsel for the Minister that, insofar as the High Court regarded the Commissioner as correct to apply the test of “exceptional circumstance” in reliance on the judgment of Mr Justice Brian McGovern in Minister for Education v Information Commissioner [2009] IR 588 or of Mr Justice Diarmuid O’Donovan in Minister for Agriculture v Information Commissioner [2000] 1 IR 309, the reference was to “exceptional cases” not “exceptional circumstances”. She said that these decisions did not offer any assistance, and the language used in both judgments reflected the “end result of the application of the test and not that a high bar is required.”

The justice said that the commissioner imposed an “unduly high” bar by requiring evidence of justifying reasons amounting to “exceptional circumstances” to establish a lawful refusal to disclose.

UCC v Information Commissioner and RTÉ

In a separate judgment, the court considered the appeal taken by the Information Commissioner related to University College Cork (UCC) and its refusal to disclose information which it considered commercially sensitive to the press.

RTÉ sought details of a €100 million loan that UCC received from the European Investment Bank (EIB). The university refused to disclose the records, under s.36, on the grounds of commercial sensitivity. UCC said that the disclosure of the loan’s details might result in financial loss to EIB, and that it might negatively UCC’s ability to avail of loans in the future.

The Information Commissioner overturned this refusal.

In the High Court, Mr Justice Garrett Simons followed the precedent set by the Court of Appeal. The Commissioner appealed.

The Supreme Court allowed the Commissioner’s appeal. Ms Justice Baker held that the High Court erred in following, as he was compelled to, the judgment of the Court of Appeal.

Ms Justice Baker said that the deference due to the Commissioner in her field of expertise requires that the court “cannot engage with the content of a disputed record” in the way which the High Court had set, and “an appeal on a point of law does not permit the court to come to a conclusion on the appropriate redactions to contested records.”

The judge was satisfied that the correct test as to whether a record is qualified “exempt” as commercially sensitive under s.36(1)(b) is a two-limb test, with the first referring to information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates. The second limb refers to information whose disclosure could prejudice the competitive position of the person to whom the information relates in his or her profession or business or otherwise in his or her occupation.

The trial judge was correct when he stated that the threshold in each limb is different and he correctly relied upon Westwood Club v Information Commissioner [2015] 1 IR 489. Mr Justice Simons was also correct when he held that the Commissioner failed to apply the test correctly.

The court opined that it was not sufficient “for an FOI body to identify the records and merely assert that they could prejudice the competitive position of a person. An FOI body must also have a reasonable basis for that position. A bare assertion will never do, albeit it may be relatively easy to meet the low test in the second limb.”

Conclusion

The Supreme Court allowed both appeals, and remitted both matters to the Information Commissioner.