Dickie v Information Commissioner

JurisdictionIreland
JudgeMr. Justice Garrett Simons
Judgment Date01 November 2023
Neutral Citation[2023] IEHC 585
CourtHigh Court
Docket Number2023 No. 220 MCA

In the Matter of the Freedom of Information Act 2014

Between
Bryan James Barkley Dickie
Appellant
and
Information Commissioner
Respondent

[2023] IEHC 585

2023 No. 220 MCA

THE HIGH COURT

Appearances

The appellant represented himself

Francis Kieran for the respondent instructed by the Office of the Information Commissioner

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 November 2023

INTRODUCTION
1

These proceedings take the form of an appeal to the High Court on a point of law pursuant to Section 24 of the Freedom of Information Act 2014. This judgment addresses the appropriate procedure to be adopted in circumstances where the respondent to the appeal, i.e. the Information Commissioner, has conceded a single ground of appeal. The respondent submits that the entire matter should be remitted for reconsideration by his office. The appellant, conversely, wishes to pursue his appeal to the High Court on the remaining grounds of appeal.

PROCEDURAL HISTORY
2

This appeal relates to a request made to the Central Bank of Ireland for the disclosure of certain records pursuant to the Freedom of Information Act 2014 (“ FOI Act 2014”). This request had been made by Mr. Dickie, the appellant herein, on 22 November 2022. The request related to the daily trading volume of three listed financial instruments or shares. The Central Bank of Ireland (“ CBI”) refused the request. Following an unsuccessful application for an internal review, the appellant applied to the Information Commissioner to review the decision to refuse to grant the request.

3

(For ease of reference, the decision-maker is identified throughout this judgment as the Information Commissioner. In fact, the review function had been lawfully delegated to a senior investigator within the Commissioner's office. Nothing turns on this delegation).

4

By review decision dated 10 May 2023, the Information Commissioner upheld the refusal of access to the records on two grounds. The first ground was that the disclosure of the records was prohibited under Section 42 of the FOI Act 2014. This section provides, in relevant part, that the Act does not apply to a record held by the Central Bank of Ireland the disclosure of which is prohibited by what are described as “ the Supervisory Directives”. The shorthand the “ Section 42” ground will be employed in this judgment to describe this ground for refusal.

5

The second ground for refusal relied upon by the Information Commissioner was that the records contain confidential personal information relating to the financial affairs of an individual and confidential financial information relating to a firm regulated by the Central Bank of Ireland. The records were said, therefore, to fall within the exclusion under Part 1(b)(i) of Schedule 1 of the FOI Act 2014. This provides as follows:

“Section 6 does not include a reference to—

the Central Bank of Ireland, insofar as it relates to—

(i) records held by it containing—

(I) confidential personal information relating to the financial or business affairs of any individual, or

(II) confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland,

that the Central Bank of Ireland has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record)”.

6

The shorthand the “ confidential financial information” ground will be employed in this judgment to describe this second ground for refusal.

7

It should be explained that having found that the records were not subject to the FOI Act 2014, the Information Commissioner concluded that there was no need for him to address the additional grounds which had been relied upon by the Central Bank of Ireland in its decision. The CBI had relied upon Section 15(1)(a) and Section 17(4) of the FOI Act 2014 in addition to the two grounds subsequently upheld by the Information Commissioner.

8

The within proceedings were instituted by way of originating notice of motion on 14 July 2023. The proceedings take the form of an appeal on a point of law against the review decision of the Information Commissioner. The proceedings are brought pursuant to Section 24 of the FOI Act 2014.

9

The Information Commissioner has since indicated to the appellant and to the High Court that the review decision was premised, in part, on a factual error. More specifically, it has been explained that the investigator mistakenly thought that the financial instruments or shares were not regulated by the Central Bank of Ireland but rather by another European regulator. The investigator had concluded that, as such, the disclosure of the records would be prohibited by a “ Supervisory Directive” within the meaning of the Central Bank Act 1942. On this analysis, the disclosure of the records would have been prohibited under Section 42 of the FOI Act 2014. It is now accepted on behalf of the Information Commissioner that this conclusion is erroneous and that the disclosure of the...

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