Grange v The Information Commissioner

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice O'Regan
• Judgment Date: 07 March 2018
• Neutral Citation: [2018] IEHC 108
• Docket Number: [RECORD NO. 2016 380 MCA]
• Date: 07 March 2018

BETWEEN

MICHAEL GRANGE

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

THE MINISTER FOR FOREIGN AFFAIRS AND TRADE

NOTICE PARTY

[2018] IEHC 108

O'Regan J.

[RECORD NO. 2016 380 MCA]

THE HIGH COURT

Information Technology & Data Protection – Ss.15 and 24 of the Freedom of Information Act, 2014 – Breach of fair procedure – Error in law

Facts: The appellant sought an order to the effect of discharging the order of the respondent. The appellant also sought a declaration that the respondent had erred in law in finding that the request of the appellant for information from the third party was frivolous and vexatious. The appellant also sought a declaration that the respondent had failed to accord fair procedures to the appellant and breached natural and constitutional justice. The appellant contended that the decision of the respondent was premature. The appellant argued that the data protection requests or parliamentary questions (PQs) or other freedom of information requests could not amount to a standard of vexatious. The respondent contended that had taken into account the evidence legitimately and within the jurisdiction.

Ms. Justice O'Regan refused to grant the relief sought by the appellant. The Court held that there were no sufficient grounds to prove that an error in law had existed on part of the respondent. The Court observed that the decision of the respondent was not premature; hence, there was no breach of fair procedure. The Court found that the non-furnishing of the third party submissions, prior to the decision, had not breached any constitutional right of the appellant.

JUDGMENT of Ms. Justice O'Regan delivered on the 7th day of March, 2018

Issues

1 By notice of motion bearing date the 29th November, 2016, grounded on an affidavit of the appellant of the same date, the appellant applied to the High Court pursuant to the provisions of s. 24 of the Freedom of Information Act, 2014 to discharge the decision of the respondent of the 4th November, 2016 and further sought a declaration that the respondent erred in law in finding that the appellant's request for information from the third party bearing date the 28th of May, 2016, was frivolous and vexatious under s. 15 of the 2014 Act. In addition, the appellant seeks a declaration that the respondent failed to accord fair procedures and breached natural and constitutional justice and took into account irrelevant matters and/or failed to take into account relevant matters in arriving at its decision.

2 Under s. 24 of the 2014 Act, a party is enabled to appeal to the High Court if affected by a decision of the respondent under s.22, by way of a review on a point of law from such decision. Although there is another basis for such an appeal, same does not arise in the instant appeal.

3 The asserted errors of law on the part of the respondent are set out more fully in the appellant's affidavit of the 29th November, 2016 at para. 95 thereof.

Background

4 The appellant made an application by way of information request of the third party bearing the date 28th May, 2016. This request was refused on the part of the third party by Ms. Kiernan, in a decision of the 27th June, 2016 based upon s. 15(1)(g) of the 2014 Act – under this particular subsection a request for freedom of information may be reused if the request in the opinion of the head, is frivolous or vexatious or forms part of a pattern of manifestly unreasonable requests from the same requestor. By communication of 1st July, 2016, Ms. Kiernan confirmed that the refusal was made on all three grounds under s. 15(1)(g).

5 The appellant sought a review of Ms. Kiernan's decision and by review decision of the 26th July, 2016, by Mr. Ó Caollaí, the initial refusal of information was affirmed on the basis that the request was frivolous and vexatious. On the 26th July, 2016, the appellant made an application to the respondent for a review of Mr. Ó Caollaí's decision, pursuant to s.22 of the 2014 Act.

Deadline for Supplementary Submissions

6 On the 11th October, 2016 the appellant was invited to make further submissions as it was intended that a recommendation of the investigating officer would be made to refuse the application for information requested on the basis that same was frivolous and vexatious. By response of the 12th October, 2016, the appellant indicated that he required the Minister's submissions and a further two week period from receipt of those submissions to make any supplementary submissions of his own. Subsequently, in an email of the 27th October, 2016, the appellant sought an oral hearing - at this time by reason of a prior communication the deadline for the appellant's additional submissions was set as the 4th November, 2016.

7 The appellant has confirmed during the course of this hearing that the failure to have an oral hearing is not the subject matter of his application to the High Court.

8 It is noteworthy that in his email requesting an oral hearing of the 27th October, 2016, he did not indicate that he required a further extension of time from the 4th of November, 2016. Ultimately, the decision now under appeal to the High Court was made by the respondent on the 4th November 2016, although not published to the appellant until on or after the 7th November, 2016. During the course of submissions the appellant suggests that the decision was premature as he had until the close of business on the 4th November 2016 to make his submissions. The appellant did not agitate this point in his initial affidavit of 29th November, 2016; however he did file a supplementary affidavit bearing date the 22nd May, 2017. At para 13 thereof, he states that inter alia (by reference to para. 31 of his initial affidavit) on the 27th October, 2016 that he was awaiting a response to his request for an oral hearing and a copy of the third parties submissions with the deadline then being, for his supplementary submissions, the 4th November, 2016, however he states that:-

‘It was my expectation that the respondent would have provided me with a week or two to make submissions after ruling on these two applications. No matter what the outcome was, I would have made a submission.’

9 It is noted that the appellant had in fact received an email of the 27th October, 2016 indicating that Ms. Murdiff, investigating officer on behalf of the respondent, was of the view that the appellant had been put on notice of the material issues arising in the department's submissions in line with fair procedure and that he had already lodged comprehensive submissions of his own and any further submissions he wished to make would be given full consideration before a final decision was made.

10 In the body of the decision it is recorded that the respondents' policy document provides that, in general, submissions will not be exchanged, and that the appellant had previously been informed of this on a number of occasions. This statement in the decision has not been challenged.

11 On this point, therefore, I am satisfied that the appellant had not in fact sought an extension of time, was aware of the deadline for his submission being the 4th November, 2016, was effectively advised by Ms. Murdiff that he would not be receiving the third party submissions and indeed in a subsequent email of the 27th October, 2016 indicated that in the absence of a positive response from the respondent he fully reserved his position. The foregoing does no support any realistic understanding on the part of the appellant that the deadline for submissions would be extended beyond the 4th November, 2016, or that he had any expectation that the deadline would be extended or that in fact he would have made further submissions in the absence of being furnished with the third party submissions or in the absence of being afforded an oral hearing.

Premature decision

12 I am further satisfied that the fact that the decision of the respondent is dated the 4th November, 2016 but was not published until, on or after the 7th November, 2016, is not a breach of fair procedure nor did any prejudice arise as against the appellant. Furthermore, as aforesaid, the appellant has not agitated this point in his initial notice of motion or grounding affidavit.

Relevant or irrelevant documents

13 The essential difference as between the appellant, in conducting this appeal, and the respondent and notice party is that the appellant urges the court to look at the information request of the 28th of May, 2016 on an effective stand-alone basis whereas the respondent and third party urge that this request for information has to be seen in the context of dealings as between the appellant and the third party including, in particular all such dealings since 2013, when the appellant was unsuccessful in securing a position on the third party's roster of members from whom parties would be nominated as election observers for a particular mission, together with the emails of the appellant to the third party respectively dated the 10th May, 2016 and the 12th June, 2016. In the events the respondent and indeed the third party, when the third party was making its decisions, both had regard to the history of events from 2013 and the respondent had regard to the email of the 12th June, 2016, aforesaid, in arriving at the decision.

14 The appellant urges that such broad overview of the information request of the appellant of 28th of May, 2016 is in fact impermissible under the 2014 Act by reason of:-

(a) Section 13(4) thereof which provides that subject to this act in deciding whether to grant or refuse a freedom of information request, any reason that the requestor gives for the request, or any belief or opinion of the head as to what the reasons of the requestor is thought to be, that reason should be disregarded,

And

(b) The wording of s. 15(1)(g) in commencing with the words: - ‘The request is ….’

...