Kelly v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 01 June 2017
• Neutral Citation: [2017] IESC 64
• Court: Supreme Court
• Docket Number: [Record No: AP: IE: 2015:0089],[S.C. No. 89 of 2015]
• Date: 01 June 2017

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997-2003 AND IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014

Between /

PATRICK KELLY

Appellant

-and-

THE INFORMATION COMMISSIONER

Respondent

-and-

UNIVERSITY COLLEGE DUBLIN, NATIONAL UNIVERSITY OF IRELAND

Notice Party

[2017] IESC 64

McKechnie J.

O'Donnell Donal J.

McKechnie J.

Clarke J.

Laffoy J.

Dunne J.

[Record No: AP: IE: 2015:0089]

THE SUPREME COURT

Statutory interpretation – Freedom of information Act 1997 – Questions of general public importance – Appellant seeking a review of decisions by the respondent – Whether an appeal lies to the High Court under s. 42(1) of the Freedom of Information Act 1997 in respect of the decision of the respondent to discontinue the review pursuant to s. 34(9)(a)(i)

Facts: The appellant, Mr Kelly, in a twelve month period commencing in April, 2012, made a total of seven applications under the Freedom of Information Act 1997 to the public body in question. None of those applications were successful, either at first instance or at internal review level. The appellant then sought a review of each of those decisions by the respondent, the Information Commissioner. By letter dated the 11th September, 2013, the Commissioner informed Mr Kelly that she was discontinuing all such reviews, as in her opinion the applications made to her were vexatious. Both that decision and the grounds thereof were made pursuant to s. 34(9)(a)(i) and (9)(b) of the 1997 Act. The appellant appealed that series of decisions to the High Court, purportedly under s. 42 of the 1997 Act. In her judgment delivered on the 7th October, 2014, O’Malley J held that the High Court had no jurisdiction to entertain the appeal under s. 42, but added that even if she was wrong in that regard, she was satisfied that the respondent’s interpretation of the statutory terms and her application of them were within her statutory powers and entirely justifiable. An Order for Costs was subsequently made against Mr Kelly. Mr Kelly served a notice of appeal against the judgment and Order of the High Court. The Court of Appeal delivered its judgment on the 30th November, 2015. It was of opinion that the sole ground for determination was whether or not there was a right of appeal to the High Court from such a discontinuance under s. 42 of the 1997 Act. The judgment of the Court of Appeal was to dismiss the appeal and uphold the decision of the High Court. Costs followed the event. On Mr Kelly’s subsequent application for leave to appeal, the Supreme Court certified two questions as being of general public importance. These were as follows: (i) Did an appeal lie to the High Court under s. 42(1) of the 1997 Act in respect of the decision of the Commissioner made on the 11th September, 2013, to discontinue the review pursuant to s. 34(9)(a)(i)?; and (ii) Does a similar issue arise under the Freedom of Information Act 2014?

Held by McKechnie J that the first certified question must be answered in such a way as to indicate that no appeal lay to the High Court under s. 42 of the 1997 Act from the exercise by the Commissioner of her power to discontinue a review under s. 34(9)(a). McKechnie J held that the same conclusion followed in respect of the equivalent provisions of the 2014 Act. In coming to this conclusion, McKechnie J pointed out that a person aggrieved by such a decision of the Commissioner is not without recourse to legal remedy, as the judicial review procedure is available to him; the fact that leave may have to be obtained and that the remedy is discretionary creates no injustice where a decision is made under s. 34(9)(a) of the 1997 Act.

McKechnie J held that the questions must be answered in the manner suggested.

Appeal dismissed.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 1 ^st day of June, 2017

Introduction

1 The instant appeal, moved with the written permission of this Court given on the 12 ^th February, 2016 ( [2016] IESC DET. 23), raises an important and complicated point of statutory interpretation arising out of the Freedom of Information Acts 1997-2003 (‘the 1997 Act’) and, in particular, from the provisions of sections 34 and 42 thereof. In essence, the first certified point upon which leave was given requires an opinion from this Court as to whether a person concerned can appeal a ‘decision’ by the Information Commissioner to discontinue a review on the basis that the application or the application to which the review relates is frivolous or vexatious. That same point is also certified under the equivalent provisions of the Freedom of Information Act 2014 (‘the 2014 Act’). In the first instance, however, I propose to thread the relevant issues through the 1997 Act.

2 At the outset of this judgment it is important to state that whilst net and narrowly defined, the point at issue is a technically difficult one. It is therefore appropriate to acknowledge the quality of both the written and oral submissions made by and on behalf of the parties, and in particular those made by the appellant. He is self-evidently a person of considerable legal understanding, with much litigation experience to his name. Although appearing for himself, he did not suffer at any level by reason thereof.

Summary

3 In the twelve month period commencing in April, 2012, Mr. Kelly made a total of seven applications under the 1997 Act to the public body in question. None of these applications were successful, either at first instance or at internal review level. The appellant then sought a review of each of these decisions by the Information Commissioner (‘the Commissioner’). By letter dated the 11 ^th September, 2013, the Commissioner informed Mr. Kelly that she was discontinuing all such reviews, as in her opinion the underlying applications or the applications made to her (‘the application(s)’) were vexatious. Both that decision and the grounds thereof were made pursuant to section 34(9)(a)(i) and (9)(b) of the 1997 Act (paras. 15 and 17, infra).

4 The appellant appealed this decision, or this series of decisions, to the High Court, purportedly under section 42 of the 1997 Act. In her judgment delivered on the 7 ^th October, 2014 ( [2014] I.E.H.C. 479), O'Malley J. held that ‘the Court [had] no jurisdiction to entertain [the] appeal’ under section 42 of the Act (para. 98), but added that even if she was wrong in that regard, she was ‘satisfied that the respondent's interpretation of the statutory terms and her application of them [i.e. the meaning of “frivolous or vexatious”] were within her statutory powers and entirely justifiable’ (para. 106). An Order for Costs was subsequently made against Mr. Kelly. It should be noted that whilst UCD was originally a Notice Party to the present application, that body was dismissed from the proceedings by Order of the High Court made on the 20 ^th January, 2014.

5 Mr. Kelly served a notice of appeal against the judgment and Order of the High Court. The Court of Appeal delivered its judgment on the 30 ^th November, 2015 ( [2015] I.E.C.A. 270). It was of opinion that the sole ground for determination was whether or not there was a right of appeal to the High Court from such a ‘discontinuance’ under section 42 of the 1997 Act. Save for one other issue, not of relevance, the judgment of the Court was to dismiss the appeal and uphold the decision of the High Court. Costs followed the event.

6 On Mr. Kelly's subsequent application for leave to appeal, this Court certified two questions as being of general public importance. These are as follows:-

‘(i) Did an appeal lie to the High Court under section 42(1) of the Freedom of Information Act 1997 in respect of the decision of the Commissioner made on the 11 ^th September, 2013 to discontinue the review pursuant to section 34(9)(a)(i)?; and (ii) Does a similar issue arise under the Freedom of Information Act 2014?’

Background

7 Even though the following historical context does not influence the outcome of the legal issues raised in this appeal, it would leave an unexplained void in this judgment unless mention was made of the long-running and antagonistic, if not downright bitter, controversy which has surrounded the appellant's dispute with University College Dublin (‘UCD’). It is difficult to believe that litigation lasting for over fifteen years has followed from a decision by UCD not to offer Mr. Kelly a place, in their first round offers, on a Masters in Social Science (Social Worker) Mode A course which he applied for in December, 2001. Such an offer, albeit described as ‘provisional’, was made in August of the following year, but was declined by the appellant. By that stage the initial process utilised by Mr. Kelly to ventilate his grievance had commenced.

8 In April, 2002, Mr. Kelly made a formal complaint of gender discrimination, alleging breaches of section 3(1)(a) and section 3(2)(a) of the Equal Status Act 2000, to the Director of the Equality Tribunal. The factual basis for this complaint rested, inter alia, on an assertion by Mr. Kelly that he was ‘more qualified than the least-qualified female applicant’ for the course, and that UCD's initial decision was gender-based. He also alleged some rudeness at interview. Following the decision of the Tribunal that the applicant had failed to establish a prima facie case of discrimination on gender grounds, Mr. Kelly appealed such decision to the Circuit Court.

9 Before that appeal could be heard, however, the appellant sought copies from UCD of the applications and of the scoring sheets of the 49 candidates whose application forms had been retained. That application was refused by the President of the Circuit Court and, on appeal, by a written judgment of the High Court delivered on the 31 ^st July, 2008, with the grounds therefor being that under domestic law the documents in question were confidential in nature....