Minister for Education & Science -v- Information Commissioner,  IEHC 279 (2008)
|Docket Number:||2006 12 MCA|
|Party Name:||Minister for Education & Science, Information Commissioner|
THE HIGH COURT2006 No. 12 MCAIN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997,
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42 (1) OF THAT ACTBETWEENTHE MINISTER FOR EDUCATION AND SCIENCEAPPELLANTAND
THE INFORMATION COMMISSIONERRESPONDENT
JUDGMENT of Mr. Justice Brian McGovern delivered on the 31st day of July, 2008
In these proceedings, the Minister appeals against the decision of the Information Commissioner (hereinafter referred to as "the Commissioner") that a document known as Record No. 32 is not an "exempt record" within the meaning of the Freedom of Information Act 1997, and her construction of s. 19 (1) (a) and s. 19 (1) (c) thereof. The applicant submits that the respondent erred in law in concluding that Record No. 32 is not an "exempt record".
The legislation provides that where a decision is made to refuse a request under the Act, this can be reviewed by the Commissioner, pursuant to s. 34 of the Act. The Act provides that a decision to refuse to grant a request, ". . . shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." See s. 34 (12) (b) of the 1997 Act.3. Section 42 (1) of the Act, provides that a: " . . . party to a review under s. 34, or any other person affected by the decision of the Commissioner following such a review, may appeal to the High Court on a point of law from the decision." There are procedures in the Act which allow for the hearing to be in camera so as to avoid disclosure to the public of the documents until the matter has been decided. In this case the Court made such a ruling in view of the nature of the document being considered.
This case concerns "Record No. 32" which is a Draft Memorandum for Government, prepared in July 2001, which was not, in fact, submitted by the Minister to Government. Because the Memorandum was not sent to Government, the Commissioner took the view that s. 19 (1) (a) of the Act, did not apply to it. She also held that Record No. 32 was not "a record of the Government" so that s. 19 (1) (b) did not apply. In giving her reasons for her decision, the Commissioner also stated that she: " considered whether the Memorandum, as prepared, contains information (including advice in the form of a proposal and recommendation in his name) for a member of the Government, (the Minister) for use by him in such a way as would bring Record No. 32 within the scope of the exemption provided by s. 19 (1) (c) . . ."Given that the Minister decided not to proceed on the basis of what had been prepared in the form of this record, he did not use the information (including advice) prepared for him, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government. For that reason, she decided that Record No. 32 did not fall within section 19 (1) (c).
I propose to deal with s. 19 (1) (c) first. This provides that a head of a public body, as defined in the Act, shall refuse to grant a request under s. 7, if the record concerned:-
"(c) Contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government, or the Assistant Secretary to the Government, for use by him or her, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government".
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