Kelly v Information Cmsr

• Jurisdiction: Ireland
• Judgment Date: 30 November 2015
• Neutral Citation: [2015] IECA 270
• Date: 30 November 2015
• Court: Court of Appeal (Ireland)

[2015] IECA 270

THE COURT OF APPEAL

The President

Kelly J.

Hogan J.

[No. 1436/2014]

Kelly v Information Cmsr

BETWEEN

PATRICK KELLY

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

Freedom of information – Right to appeal – Discontinuance – Appellant seeking to appeal against the discontinuation of a review – Whether statutory provisions confirm appellant”s entitlement to appeal

Facts: The appellant, Dr Kelly, brought a series of applications to the respondent, the Information Commissioner, under s. 34(2) of the Freedom of Information Act 1997 for the review of decisions to refuse him access to certain records. The Commissioner initially embarked on a review of the decisions, but subsequently invoked her discretion under s. 34(9)(a) to discontinue the review on the ground that his applications or the applications to which the review related were vexatious. Dr Kelly then appealed to the High Court against the discontinuation of the review, seeking to exercise a right in that behalf under s. 42(1). The Commissioner resisted the application to the High Court on the principal ground that an appeal did not lie to the High Court under s. 42(1) in respect of a discontinuation pursuant to s. 34(9)(a). In October 2014, the High Court (O”Malley J) accepted that submission as being sound in law and held that Dr Kelly did not have a statutory right to appeal. The appellant appealed to the Court of Appeal against the judgment and order of the High Court. He first argued that the statutory provisions, properly understood, confirm his entitlement to appeal. Secondly, he argued that there is relevant High Court precedent in Killilea v Information Commissioner [2003] 2 IR 402 that O”Malley J ought to have followed. In respect of a decision which the trial judge cited with approval, Nowak v Data Protection Commissioner [2012] IEHC 449, the appellant argued that it was not relevant.

Held by the Court that the appellant”s reading of s. 42(1) was contrary to the sense of the provision in the subsection as well as to any rule of plain meaning; it was not in accordance with recognised principles of statutory interpretation. The Court held that s. 42 does not apply, noting that Dr Kelly was a party to the review but there was no decision following the review; the process of review stopped so there was no conclusion. The Court held that to be the exercise of the Commissioner”s discretion under s. 34(9) and noted that s. 42(1) is conditional on a review coming to a conclusion. The Court judged that O”Malley J was correct in her interpretation and in her decision that no appeal lay from the discontinuance by the Commissioner of the review.

The Court held that the appeal be dismissed.

Appeal dismissed.

Introduction

1 1. This is an appeal brought by Dr. Kelly against the judgment and order of O'Malley J. in the High Court on 7 ^th October 2014. The principal question that arises in the case is the meaning of s. 42(1) of the Freedom of Information Act 1997. For reasons that will become clear, that is effectively the only question in the case.

2 2. The background to the case may be very briefly noted although it does not have relevance to the issues under consideration. This is another episode in a saga of dispute between Dr. Kelly and UCD which has its origin in 2001 when he applied for a place on a Social Science course. The dispute in various forms has been before the courts on many occasions. The factual basis of this case is Dr. Kelly's applications to UCD under the Freedom of Information Act and his seven review applications made to the Commissioner pursuant to s. 34 of the 1997 Act.

3 3. Dr. Kelly brought the series of applications to the Information Commissioner under s. 34(2) of the Act for the review of decisions to refuse him access to certain records. The Commissioner initially embarked on a review of the decisions, but subsequently invoked her discretion under s. 34(9)(a) to discontinue the review on the ground that his applications or the applications to which the review related were vexatious. Dr. Kelly then appealed to the High Court against the discontinuation of the review, seeking to exercise a right in that behalf under s. 42(1) of the Act.

4 4. The Commissioner resisted the application to the High Court on the primary and principal ground that an appeal does not lie to the High Court under s. 42(1) in respect of a discontinuation pursuant to s. 34(9)(a). O'Malley J. in the High Court accepted that submission as being sound in law and held that Dr. Kelly did not have a statutory right to appeal. He was not without remedy because he could apply for judicial review if he was aggrieved and was able to show the ground for such an application.

5 5. The High Court also held against Dr. Kelly on other grounds. Having dealt with the question of an appeal under s. 42(1), the judge proceeded to consider a limited number of other points that he had raised which might have been considered to be points of law, doing so on the conditional basis that she was wrong in her finding on the main question.

6 6. The High Court considered an objection that Dr. Kelly made to the authority and capacity of the deponent of the affidavits in response to his application to speak on behalf of the Commissioner. This court is in agreement with the conclusion of O'Malley J. on that question. Any other arguments that Dr. Kelly put forward in his High Court application will only arise if he is correct in contending that he has a statutory right of appeal. It is an essential part of Dr. Kelly's case that the Commissioner was wrong in discontinuing her review, and that he is entitled to appeal to the High Court to seek the reversal thereof. Thus, the question of capacity or authority on the part of the deponent of the responding affidavits is irrelevant on the principal issue and could only arise if this Court were to decide in Dr. Kelly's favour on the question of interpretation.

Dr. Kelly's case on this issue is, first, that the statutory provisions, properly understood, confirm his entitlement to appeal. Secondly, he argues that there is relevant High Court precedent in the decision of Murphy J. in Killilea v. Information Commissioner [2003] 2 I.R. 402 that O'Malley J. ought to have followed. Dr. Kelly submits that the analysis made by Murphy J. is in fact the correct interpretation of the appeal provision. In respect of a decision of Birmingham J which the trial judge cited with approval, Nowak v. Data Protection Commissioner [2012] IEHC 449, he argues that it is not relevant.

The Proceedings

7 7. By notice of motion dated 7 ^th October 2013, Dr. Patrick Kelly applied to the High Court for a series of orders, including an order allowing his appeal under s. 42(1) of the Freedom of Information Acts 1997 and 2003, and an order setting aside the decision of 11 ^th September 2013 of the Information Commissioner. He sought a variety of other reliefs and set out as points of law some nine issues. The Information Commissioner had written to Dr. Kelly on the date mentioned to inform him that she had decided to discontinue her review in seven separate review applications made by Dr. Kelly in connection with requests he had made to UCD. In the course of this letter, the Commissioner explained in detail why she had come to the conclusion in relation to Dr. Kelly's application and she concluded as follows.

"I conclude, based on the evidence before me, that you are using FOI tactically in pursuit of your long-standing grievance with UCD. I am satisfied, therefore, that these reviews form part of a pattern of conduct that amounts to an abuse of the FOI process and I find, therefore, that your applications or the applications to which the reviews relate are vexatious. Accordingly, in the exercise of my discretion under section 34 (9) (b), I discontinue these reviews pursuant to the provisions of section 34 (9) (a) (i) of the FOI Act."

8 8. In her judgment on the application brought by Dr. Kelly to the High Court, O'Malley J. held that the Court had no jurisdiction to entertain the appeal because of her interpretation of s. 42(1) of the 1997 Act, but nevertheless also addressed some questions of law that she felt would have arisen if decision on the interpretation was incorrect.

The Relevant Provisions

9 9. The provisions of the legislation with which we are directly concerned in this appeal are subsections of sections 34 and 42. Section 34(2) and (9) are as follows:

2 "(2) Subject to the provisions of this Act, the Commissioner may, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person-

(a) review a decision to which this section applies, and

(b) following the review, may, as he or she considers appropriate-

(i) affirm or vary the decision, or

(ii) annul the decision and, if appropriate, make such decision in relation to the matter concerned as he or she considers proper,

in accordance with this Act.

3 (9)

(a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that-

(i) the application aforesaid or the application to which the review relates ('the application') is frivolous or vexatious,

(ii) the application does not relate to a decision specified in subsection (1), or

(iii) the matter to which the application relates is, has been or will be, the subject of another review under this section.

(b) In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion."

Section 42 (1) is as follows:

2 "42.-(1) A party...