Gannon v The Information Commissioner

• Jurisdiction: Ireland
• Judge: Quirke J.
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 17
• Court: High Court
• Docket Number: [2005 No. 12 MCA]
• Date: 31 January 2006

GANNON v INFORMATION COMMISSIONER

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997–2003

AND IN THE MATTER ON APPEAL PURSUANT TO SECTION 42(1) OF THAT ACT

BETWEEN

HAROLD J. GANNON

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

[2006] IEHC 17

[No. 12 MCA/2005]

THE HIGH COURT

FREEDOM OF INFORMATION Appeal Information Commissioner - Appeal on point of law - Review by Commissioner of refusal by Legal Aid Board to disclose records - Confidential information - Public interest in refusing request - Whether decision of Commissioner irrational or unreasonable - Whether inferences drawn by Commissioner from interpretation of documents incorrect - Whether appellant afforded fair procedures - Sheedy v Information Commissioner [2004] IEHC 192 [2004] 2 IR 533 and Deely v Information Commissioner [2001] 3 IR 349 applied - - Freedom of Information Act 1997 (No 13) s 26 - Freedom of Information (Amendment) Act 2003 (No 9) - Civil Legal Aid Act 1995 (No 32) - Civil Legal Aid Regulations 1996 (SI 273/1996) - Appeal dismissed (2005/12MCA - Quirke J - 31/1/2006) [2006] IEHC 17 Gannon v Information Commissioner

Facts: The applicant appealed a decision of the respondent to refuse him, pursuant to s. 26(1) Freedom of Information Act, 1997 on "confidence" grounds, access to written records of the Legal Aid Board as to an application by a Third Party to the Legal Aid Board as irrational and contrary to natural justice.

Held by Quirke J. that the respondent had adopted the correct definition of "confidence" and had correctly refused the application. No grounds of irrationality or want of natural justice had been made out.

Reporter: E.F.

FREEDOM OF INFORMATION ACT 2003 S42(1)

FREEDOM OF INFORMATION ACT 1997 S22

FREEDOM OF INFORMATION ACT 1997 S23

FREEDOM OF INFORMATION ACT 1997 S32

FREEDOM OF INFORMATION ACT 1997 S14

FREEDOM OF INFORMATION ACT 1997 S26(1)(a)

B v BRISBANE NORTH REGIONAL HEALTH AUTHORITY 1994 1 QAR 279

FREEDOM OF INFORMATION ACT 1997 S26(3)

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S43(3)

FREEDOM OF INFORMATION ACT 1997 S43(1)

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S8(4)

FREEDOM OF INFORMATION ACT 1997 S26(1)(a)

CIVIL LEGAL AID ACT 1995 S32(2)

DEELY v INFORMATION COMMISSIONER & DPP 2001 3 IR 439

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

FREEDOM OF INFORMATION ACT 1992 S46(1)(b)

GURRY ESSAYS IN EQUITY 1985

RYDER v BOOTH 1985 VR 869 (T883)

CIVIL LEGAL AID ACT 1995 S3

CIVIL LEGAL AID ACT 1995 S24

CIVIL LEGAL AID ACT 1995 S26

CIVIL LEGAL AID ACT 1995 S29

CIVIL LEGAL AID REGS 1996 SI 273/1996

SHEEDY v INFORMATION COMMISSIONER 2005 2 ILRM 374

1 JUDGMENT of Quirke J. delivered on the 31st day of January, 2006.

2 This is an appeal by Harold J. Gannon ("the appellant"), on a point of law, pursuant to s. 42(1) of the Freedom of Information Act 1997. His appeal is against a decision of the respondent to affirm an earlier decision of the Legal Aid Board ("the Board") to refuse him access to certain written records within the possession of the Board. The records relate to an application made on behalf of an applicant ("the Third Party") for free legal aid. Notice of the respondent's decision was delivered to the appellant by letter dated the 23rd December 2004.

RELEVANT ACTS

3 1. By letter to the Board dated 14th May, 2004 the appellant made a request to the Board pursuant to the Freedom of Information Act for access to "any and all documents (records) submitted by the ... (Third Party) ... and/or his legal or personal representative(s) to the ... (Board)."

4 In his letter of request the appellant explained that a decision of the Board to grant legal aid to the Third Party had "adverse consequences on my pending legal action." He said that he was unclear how the decision had been reached.

5 2. By letter dated 24th May, 2004 Mr. Bernard O'Shea, the appointed Deciding Officer under the Act of 1997 responded to the appellants request. He advised that

"I have decided to refuse you access to all of the records covered by your request. I am refusing your request under ss. 22, 23, 26 and 32 of the ...(Act of 1997)."

6 The letter of response provided inter alia as follows

"Section 26 Information obtained in confidence.

7 Section 26(1) provides amongst other things that the Board shall refuse to grant a request if the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential and, in the opinion of the Board if disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body or disclosure of the information concerned would constitute a breach of duty of confidence provided by a provision of an agreement or enactment or otherwise by law. It is my opinion that the records which you seek are exempt under this section".

8 3. The appellant sought a review of the decision of the Deciding Officer. He delivered extensive written submissions to the Board's Freedom of Information Unit.

9 By letter dated 13th August, 2004 Mr. Pat Fitzsimons, the Board's Director of Human Resources, wrote to the appellant advising that;

"In accordance with s. 14 of the Freedom of Information Act 1997, I have reviewed all of the records relating to your request and the decision notified to you by letter of 24th May, 2004. I wish to advise you that following my review of the documentation, I can affirm the decision notified to you by letter of 24th May, 2004."

10 4. By letter dated 13th August, 2004 the appellant requested a review by the respondent of that decision. By letter dated 1st September, 2004 the appellant was advised that the respondent had agreed to conduct a review.

11 By letter dated 17th November, 2004 Ms. Ciara Burns, who is an investigator for the respondent, wrote to the appellant. She indicated that she had examined all of the correspondence between the appellant and the Board and the appellant's submissions to the Board. She noted that the appellant had been invited to make a submission to the respondent but had chosen not to do so.

12 Ms. Burns advised that " it is my preliminary view that s. 26(1)(a) applies to the records. As you are probably aware, s. 26(1)(a) provides for the refusal of requests if the record concerned contains information given to the public body in confidence."

13 She continued:-

"the records in this case are records provided by (Third Party) to the ... (Board). The Commissioner interprets the term "confidence" for the purposes of s. 26(1)(a) ... by reference to the following definition which is derived from the law relating to a breach of duty of confidence: A confidence is formed whenever one party ("the confider") imparts to another ("the confidant") private or secret matters on the express or implied understanding that the communication is for a restricted purpose" ("B" v. Brisbane North Regional Health Authority (1994) 1 Q.A.R. 279)... the Commissioner considers that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain i.e. that it is necessary to establish that the information has the necessary quality of confidence. Second, the communication must be for a restricted or limited purpose. Third, there must be an understanding that the information is being communicated for a restricted purpose."

14 Referring to s. 26(3) of the Act of 1997 Ms. Burns stated that "it is my preliminary view that the public interest in release does not outweigh the public interest in the right to privacy of individuals and their right to correspond in confidence, with their legal advisors".

15 She concluded that " all of the records in the scope of this review are exempt and ... there is no public interest in their release."

16 5. By letter dated 7th December, 2004 the Board wrote to Ms. Burns advising inter alia that "the records furnished by ... (the Third Party) to the Board were clearly furnished in confidence and that was self-evidently both ... (the Third Party's) ... and the Board's understanding generally."

17 The Board indicated in its letter that the relationship between the Board's solicitors and its clients was acknowledged to be a solicitor/client relationship which attracted " the "badge of confidentiality" so that the imparting of information by a client such as ... (the Third Party) ... to the Board and its solicitors will, unless the contrary were capable of being shown, be considered to have been effected in confidence."

18 6. In her decision delivered by letter dated 23rd December, 2004 the respondent adopted the earlier view of Ms. Burns and her interpretation of the term "confidence" for the purposes of s. 26(1)(a) of the Act of 1997. The respondent continued:-

"I consider that disclosure would prejudice the giving to the body of further similar information from other persons in the future and it is important to the ... (Board) that such further similar information should be continue to be given to it. I find that s. 26(1)(a) applies to the records".

19 Finally the respondent declared " ... I am aware of no public interest in this case which would justify the loss of privacy of the individual in question, and the consequent erosion of the expectation that recipients of legal aid would be treated in same way as those who were in a position to pay for legal services."

20 7. By notice of Motion dated 28th February, 2005 the appellant appealed...