DPP v The Information Commissioner
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] IEHC 752 |
| Court | High Court |
| Docket Number | 2018 No. 75 MCA |
In the Matter of Section 24 of the Freedom of Information Act 2014
[2021] IEHC 752
2018 No. 75 MCA
THE HIGH COURT
Freedom of information – Disclosure – Exemption – Appellant appealing against a decision of the respondent made in respect of a request for access to certain records held by the notice party – Whether the notice party was required to release, in part, the relevant correspondence in circumstances where the appellant would not be obliged to do so
Facts: The appellant, the Director of Public Prosecutions, appealed to the High Court against a decision of the respondent, the Information Commissioner. The decision under appeal was made in respect of a request for access to certain records held by the first notice party, the Department of Public Expenditure and Reform. The records consisted of correspondence between the Department and the Director of Public Prosecutions relating to fees payable to counsel. The principal issue for determination in the appeal was whether the Department was required to release, in part, the relevant correspondence in circumstances where the Director of Public Prosecutions would not be obliged to do so. The resolution of this issue turned on whether a record which is held by the Department must be treated as exempt from disclosure merely because a duplicate is also “held” by the Director of Public Prosecutions.
Held by the Court that s. 42(f) of the Freedom of Information Act 2014 provides that the legislation does not apply, inter alia, to a record “held” by the Director of Public Prosecutions. The Court held that this specific exemption cannot be asserted by a second Freedom of Information body, which holds a duplicate of a record held by the Director of Public Prosecutions, to refuse to disclose a record in its lawful possession. The Court held that the Director of Public Prosecutions and the second Freedom of Information body do not hold the self-same “record” within the meaning of s. 42(f). The Court held that this is so notwithstanding that the information contained in the records is identical. The Court held that the position in respect of records “created” by the Director of Public Prosecutions is different. The Court held that the Information Commissioner properly interpreted and applied the exemption in the decision under appeal.
The Court held that the decision would be affirmed, and the appeal dismissed. The Court’s provisional view was that the Information Commissioner, having been entirely successful in resisting the appeal, was entitled to recover his legal costs as against the Director of Public Prosecutions.
Appeal dismissed.
Conor Power, SC and Kieran Kelly for the Director of Public Prosecutions instructed by the Chief Prosecution Solicitor
Francis Kieran for the Information Commissioner instructed by Philip Lee Solicitors
JUDGMENT of Mr. Justice Garrett Simons delivered on 10 December 2021
This matter comes before the High Court by way of a statutory appeal against a decision of the Information Commissioner. The decision under appeal was made in respect of a request for access to certain records held by the Department of Public Expenditure and Reform. The records consist of correspondence between the Department and the Director of Public Prosecutions relating to fees payable to counsel.
The Freedom of Information Act 2014 is expressed not to apply to a record “ held” or “ created” by the Director of Public Prosecutions, other than a record relating to general administration. The principal issue for determination in this appeal is whether the Department is required to release, in part, the relevant correspondence in circumstances where the Director of Public Prosecutions would not be obliged to do so. The resolution of this issue turns on whether a record which is held by the Department must be treated as exempt from disclosure merely because a duplicate is also “ held” by the DPP.
The outcome of the appeal turns largely on the correct interpretation of section 42(f) of the Freedom of Information Act 2014 (“ the FOI Act 2014” or simply “ the Act”).
The section provides as follows:
“42. This Act does not apply to—
[…]
(f) 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”.
It is agreed between the parties that the relevant records do not relate to general administration. The dispute centres, instead, on whether the records are deemed to be “ held” by the Director. The term “ held” is not defined under the Act, but, as discussed presently, the meaning of the concept has been authoritatively addressed by the Supreme Court.
The term “ record” is defined as follows:
“‘record’ includes—
(a) a book or other written or printed material in any form (including in any electronic device or in machine readable form),
(b) a map, plan or drawing,
(c) a disc, tape or other mechanical or electronic device in which data other than visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the disc, tape or other device,
(d) a film, disc, tape or other mechanical or electronic device in which visual images are embodied so as to be capable, with or without the aid of some other mechanical or electronic equipment, of being reproduced from the film, disc, tape or other device, and
(e) a copy or part of any thing which falls within paragraph (a), (b), (c) or (d),
and a copy, in any form, of a record shall be deemed, for the purposes of this Act, to have been created at the same time as the record”.
The parties are in disagreement as to the legal effect of the deeming provision at the end of the foregoing definition. In particular, there is a dispute as to whether, in the context of an exchange of correspondence between two FOI bodies, a duplicate of a letter retained by the sender should be deemed to be the same record as the original.
Finally, it should be noted that the Act uses the omnibus term “ exempt record” to refer both to records to which the legislation does not apply at all (such as those described by section 42(f)), and to records subject to the Act but exempt from disclosure in certain circumstances.
The decision under appeal was made in respect of a request for access to certain records held by the Department of Public Expenditure and Reform (“ the Department”). The request had been made by a journalist with the Sunday Times newspaper, and sought access to correspondence wherein various public bodies including, relevantly, the Director of Public Prosecutions (“ DPP”), had sought to increase the normal rates of fees paid to barristers or solicitors in court cases, and the response of the Department in each instance.
The matter came before the Information Commissioner by way of an appeal by the requester against the Department's decision to refuse access. The principal issue for determination by the Information Commissioner had been whether the release of the records is precluded by section 42(f) of the Act.
In brief, the Information Commissioner concluded that the letters sent by the DPP to the Department were not subject to disclosure on the basis that same constituted records which had been “ created” by the DPP. However, the letters going the other way, i.e. the letters sent by the Department to the DPP, were found not to benefit from the statutory exclusion. The Information Commissioner determined that this half of the correspondence was neither held by nor created by the DPP.
The stated rationale for the Information Commissioner's decision is as follows:
“Section 42(f) provides that the Act does not apply to a record held or created by the DPP, other than a record relating to general administration. The Department argued that the relevant records are captured by section 42(f) of the FOI Act as (i) they comprise either records that were created by the DPP or were sent to, and are now held by, the DPP, and (ii) they do not relate to the general administration of the Office but rather they refer to individual specific prosecution cases. The Department also argued that while the records relate to fees to be paid, in many cases the correspondence also touches on wider substantive issues relating to the cases such as possible prosecution strategies and issues which might be raised by the defence.
I am satisfied that those records or parts of records comprising the Department's responses to requests from the DPP to pay increased fees are not captured by section 42(f). Those records were not created by the DPP and are clearly held by the Department, not by the DPP. The fact that the DPP may also hold exact copies of those responses does not mean that the copies held by the Department are deemed to be held by the DPP.”
For completeness, it should be noted that the Information Commissioner was satisfied that the records did not relate to “ general administration”, and thus were not subject to the proviso under section 42(f). This finding is not challenged before this court.
The matter now comes before the High Court by way of an appeal against the Information Commissioner's decision. Section 24 of the FOI Act 2014 provides for an appeal on a point of law.
The parties are agreed that the point of law which arises on this appeal is the correct interpretation of section 42(f) of the Act. It is further agreed that questions of statutory interpretation are a matter for the...
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Ms X and Department of Finance
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