Jackson way Properties v The Information Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 14 February 2020
• Neutral Citation: [2020] IEHC 73
• Docket Number: [RECORD NO. 2019 69 MCA]
• Court: High Court
• Date: 14 February 2020

BETWEEN

JACKSON WAY PROPERTIES LIMITED

AND

JAMES PATRICK KENNEDY

APPLICANTS

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

NOTICE PARTY

[2020] IEHC 73

Hyland J.

[RECORD NO. 2019 69 MCA]

THE HIGH COURT

Statutory appeal – Freedom of Information Act 2014 – Error of law – Applicants seeking to appeal against a decision of the respondent – Whether the respondent erred in law in failing to correctly interpret the concept of “work” in s. 15(1)(c) of the Freedom of Information Act 2014

Facts: The applicants, Jackson Way Properties Ltd and Mr Kennedy, brought a statutory appeal under the Freedom of Information Act 2014 (the FOI Act) in relation to a decision of the respondent, the Information Commissioner, made on the 23rd January 2019 by Mr Rafferty, Senior Investigator with the Commissioner, whereby the Commissioner upheld the decision of the notice party, Dun Laoghaire Rathdown County Council, to refuse the first applicant’s request to access certain records relating to it on the basis of s. 15(1)(c) of the 2014 Act. The Commissioner’s decision was appealed to the High Court by way of Originating Notice of Motion of the 21st February 2019, grounded upon an affidavit of the second applicant, who was a director of the first applicant. The first error alleged was that the Commissioner made an error of law in failing to correctly interpret the concept of “work” in s. 15(1)(c). It was asserted that the only relevant “work” that may be considered is that involved in the discharge of the statutory functions of the FOI body. In this case those statutory functions were as identified in the Local Government Act 2001 at s. 63. The argument goes that, because the nature of the work that could permissibly be considered was not identified, and because correspondingly there was no identification of how there was an interference or distraction with that work, this amounted to an error of law. According to the applicants, a necessary corollary of this argument is that, having regard to the applicants’ definition of work, the Commissioner impermissibly considered the work of the FOI and legal services department when considering whether the requirements of s. 15(1)(c) were met. The second point was that the Commissioner wrongly interpreted the concept of “unreasonableness” in s. 15(1)(c) and failed to address the requirement to consider the reasonableness of the request separately at all, thus committing an error of law. The third point was that the reference to “voluminous requests” in the decision demonstrated that the Commissioner failed to properly interpret the section, focusing only on the question of the volume of records and not on the unreasonableness of the interference or disruption of work. The fourth point was that there was no or no sufficient evidence that the request would cause a substantial and unreasonable interference with or disruption of work.

Held by Hyland J that she did not believe work means only work involved in the discharge of the identified statutory functions in the Schedule to the 2001 Act. She was of the view that any intra vires activities carried out by a body subject to FOI are “work” within the meaning of s. 15(1)(c) and there are no excluded categories of work contrary to the argument made by the applicants. Bearing in mind the obligations placed on bodies subject to FOI legislation under the 2014 Act and that statutory bodies are required to act bona fide, she did not think it was correct for her to assume that bodies subject to same are seeking to deliberately circumvent the Act. She was not satisfied that the applicants had established that the Commissioner wrongly interpreted the term “unreasonable” or failed to apply the “unreasonableness” part of the statutory test. It seemed to her that she could not conclude that the mere reference to “voluminous requests” as a way of referring to s. 15(1)(c) must inevitably lead to the conclusion that the Commissioner misapplied himself in interpreting the section. She held that the notice party put before the Commissioner material sufficient to justify the findings made in the decision.

Hyland J held that she would refuse the relief sought by the applicants and uphold the decision of the Commissioner.

Appeal dismissed.

JUDGMENT of Ms. Justice Hyland delivered on the 14th day of February, 2020

Introduction

1 This is a statutory appeal under the Freedom of Information Act 2014 as amended (the “FOI Act”) brought by Jackson Way Properties Ltd and James Kennedy in relation to a decision of the Information Commissioner (the “Commissioner”) made on the 23rd January 2019 (the “Decision”) by Stephen Rafferty, Senior Investigator with the Commissioner, whereby the Commissioner upheld the decision of Dun Laoghaire Rathdown County Council (“DLRCC”) to refuse the first named Appellant's request to access to certain records relating to it on the basis of s.15(1)(c) of the Freedom of Information Act 2014 as amended (the “Act”). This section permits refusal on the basis that processing the request would cause a substantial and unreasonable interference with or disruption of the work of the FOI body.

2 The Commissioner's decision was appealed to the High Court by way of Originating Notice of Motion of the 21st February 2019, grounded upon an affidavit of Mr. James Patrick Kennedy, who is both a director of the first named Appellant, Jackson Way Properties (Limited) (“Jackson Way”) and the second named Appellant.

Statutory Scheme

3 Before dealing with the specific arguments raised by the Appellants, it is important to identify certain relevant statutory provisions. This is an appeal under s.24 (1)(a) of the Act whereby a party to an application under s.22 may appeal to the High Court on a point of law from the decision. There are many cases dealing with appeals under the FOI Act and the circumstances in which a court hearing an appeal on a point of law may intervene, including a recent Court of Appeal decision, FP v. Information Commissioner [2019] IECA 19 where the Court observed:

“It is clear from these (cases) that considerable deference will be afforded to an expert decision-maker such as the Commissioner, that a wide margin of appreciation will be afforded to him, being the person who has by the Act, been charged with the making of decisions in relation to requests under s. 7 of the Act. It is not sufficient, even were it to be the case, that in the exercise of the same discretion the court hearing an appeal might itself have reached a different decision”.

4 Insofar as errors of law are concerned, the case law makes it clear that no deference should be shown to the Commissioner when the High Court is interpreting a section of the Act, a legal interpretation of a statute being either correct or incorrect (see for example Deely v. Information Commissioner [2001] 1 I.R. 309).

5 The case law also makes clear that when interpreting the FOI Act, a court must have reference to the fact that it is designed to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy to information in possession of public bodies ( Minister for Agriculture v. Information Commissioner [2001] IR 309). Further, the Long Title to the Act is of importance in interpreting the Act ( Minister for Health v. Information Commissioner [2019] IESC 40).

6 Accordingly, when considering the correct interpretation of s.15(1)(c) of the Act I have had regard to the objectives set out in the Long Title to the Act, specifically that the aim of the Act is to enable members of the public to obtain access to the greatest extent possible. Equally, as per the case law referred to above, it is necessary to have regard to the overall scheme of the Act and I have sought to do so in considering the correct interpretation of s. 15(1)(c).

7 Separately, s.22(12) requires a presumption of disclosure. When the Commissioner is reviewing the decision to refuse access, the decision shall be presumed by the Commissioner not to have been justified unless the head of the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The presumption in favour of disclosure means that DLRCC carries the burden of demonstrating why the documents in question should not be released.

8 Turning now to s.15(1)(c), the subject matter of this appeal, it is headed up “Refusal on Administrative Grounds to Grant FOI Requests” and provides as follows:

“The head to whom an FOI request is made may refuse to grant a request where –

(c) in the opinion of the head granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned”.

9 Both counsel in this case agreed that the words “substantial” and “unreasonable” attach themselves both to “interference with” as well as “disruption of” work. In other words, whether one is considering interference or disruption, substantial and unreasonable interference/disruption must be demonstrated.

10 Counsel for the Commissioner, Mr. Kieran BL, focused on the importance of the first two lines of the section which identified that there is a distinction on the one hand between the number or nature of the records or the nature of the information concerned and on the other hand, the consequences that the request will have, i.e. the retrieval and examination of such number of records or an examination of such kind of the records concerned. It appears to me that the head must carry out a three part inquiry: first, they must consider the...