Killilea v Information Commissioner

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Murphy
• Judgment Date: 11 April 2003
• Neutral Citation: [2003] IEHC 63
• Docket Number: [2002 No. 54 MCA],NO. 54 MCA/2000
• Date: 11 April 2003

[2003] IEHC 63

THE HIGH COURT

NO. 54 MCA/2000

KILLILEA v. INFORMATION COMMISSIONER

IN THE MATTER OF THE INFORMATION ACT, 1997

JOSEPH KILLILEA

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

Citations:

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORAMTION ACT 1997 S34(9)(A)(II)

FREEDOM OF INFORAMTION ACT 1997 S34(1)

FREEDOM OF INFORAMTION ACT 1997 S14

FREEDOM OF INFORAMTION ACT 1997 S18(1)

FREEDOM OF INFORAMTION ACT 1997 S4

FREEDOM OF INFORAMTION ACT 1997 S14(3)

FREEDOM OF INFORAMTION ACT 1997 S34(II)

FREEDOM OF INFORAMTION ACT 1997 S14(1)(F)

FREEDOM OF INFORAMTION ACT 1997 S18

FFREEDOM OF INFORAMTION ACT 1997 (SECTION 18) REGS 1998 SI 519/1998 ART 5

FREEDOM OF INFORAMTION ACT 1997 S7

FREEDOM OF INFORAMTION ACT 1997 S18(6)

CHESTVALE PROPERTIES LTD V GLACKEN 1992 ILRM 221

FREEDOM OF INFORAMTION ACT 1997 S6(5)

FREEDOM OF INFORAMTION ACT 1997 S6(1)

FREEDOM OF INFORAMTION ACT 1997 S2

FREEDOM OF INFORAMTION ACT 1997 S2(A)

FREEDOM OF INFORAMTION ACT 1997 S2(B)

FREEDOM OF INFORAMTION ACT 1997 S2(XI)

MIN AGRICULTURE V INFORMATION COMMISSION 2000 1 IR 312

FREEDOM OF INFORAMTION ACT 1997 S18(5)

FREEDOM OF INFORAMTION ACT 1997 S42

FREEDOM OF INFORAMTION ACT 1997 S41

BENNION ON STATUTORY INTERPRETATION 679

DEELEY V INFORMATION COMMISSION 2001 3 IR 439

RYANAIR V FLYNN & MCAULEY 2000 3 IR 240

FREEDOM OF INFORAMTION ACT 1997 S34(9)(B)

O'DONNELL V DUN LAOGHAIRE COPORATION 1991 ILRM 301

RSC O.84 r21

FREEDOM OF INFORAMTION ACT 1997 S34(2)(B)

HAMILTON V HAMILTON 1982 IR 471

COMPANIES ACT 19901990 PART 2

FREEDOM OF INFORAMTION ACT 1997 S18(1)

FREEDOM OF INFORAMTION ACT 1997 S18(4)

Synopsis:

FREEDOM OF INFORMATION

Intellectual property rights

Administrative law - Garda Siochana - Pulse information system - Staff suggestion scheme - Whether valid application made for information - Whether Commissioner could consider request - Freedom of Information Act, 1997 (2002/54MCA - Murphy J - 11/4/2003)

Killilea v The Information Commissioner - [2003] 2 IR 402

The appellant had originally made a request for information to the Department of Justice concerning the Garda information system known as 'Pulse'. It was appellant's contention that his original suggestion of an information system to An Garda Síochána under a staff suggestion scheme had led to the creation of 'Pulse' and as such he was entitled to a reward. The appellant's request for information to the Department of Justice was ultimately refused and the appellant sought to appeal that refusal to the Information Commissioner (the Commissioner). Ultimately the Commissioner took the view that he had no role in adjudicating on the matter and discontinued his review under section 34(9)(a) of the Freedom of Information Act, 1997. Thereafter the appellant appealed the Commissioner's decision to the High Court. On behalf of the Commissioner it was contended that the appellant had not made at any time a valid application to the Department of Justice for information as he had not identified any specific act of the Department for which a statement of reasons was required.

Held by Murphy J dismissing the appeal. It would be unreasonable to require the Commissioner to adjudicate upon an application which had not been the actual subject of a departmental determination. In addition it would be unreasonable to require the Commissioner to conduct a full review of a decision on a request for information if that request was not made in accordance with the 1997 Act. The appellant was however not precluded from making a valid request under the 1997 Act in the future.

1 Judgment of Mr. Justice Murphy dated the 11th day of April, 2003.

1. Pleadings

2 Mr. Killilea, the appellant, by originating notice of motion dated the 8 ^th April, 2002 appeals against the decision of the Information Commissioner of the 1l ^th March, 2002 and seeks an order directing the Information Commissioner to comply with certain reliefs set out in his grounding affidavit sworn and filed on the 8 ^th April, 2002.

3 That affidavit at paragraph 2 states as follows

4 2. This appeal is in accordance with section 42 (1) of the (Freedom of Information 1997 Act, 1997("The Act")) against the decision of the Information Commissioner of the 11 ^th March, 2002, under section 34 (9) (a) (ii) of the Act to discontinue his review of my application on the basis that my application for review does not relate to a decision which he may review, as specified in section 34 (1) of the Act.

2. Legislative Provisions

5 2.1. This action is an appeal pursuant to section 42 (1) of the Freedom of Information Act, 1997. That section reads as follows:

6 42. - (1) a party to a review under section 34 or any person affected by a decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.

7 (2) The requester concerned or any other person affected by —

8 (a) The issue of a certificate under section 25,

9 (b) A decision, pursuant to section 8, to refuse to grant a request under section 7 in relation to a record the subject of such a certificate, or

10 (c) A decision, pursuant to section 14, to refuse to grant, or to uphold a decision to refuse to grant, such a request, may appeal to the High Court on a point of law from such issue or from such decision.

11 (3) A person may appeal to the High Court from -

12 (a) A decision under section 14, or

13 (b) A decision specified in paragraphs (a), (b), (c), (d), (e), (f) or (g) of subsection (1) of that section (other than such a decision made by a person to whom the function stood delegated under section 4 at the time of the making of the decision),

14 made by the Commissioner in respect of a record held by the office of the Commissioner or (in a case where the same person holds the Office of Ombudsman or the Office of Commissioner) made by the Ombudsman in respect of a record held by the Office of the Ombudsman.

15 (4) An appeal under subsection (1), ( 2) or (3) shall be initiated not later than four weeks after the notice of the decision concerned was given to the person brining the appeal.

16 (5) The Commissioner may refer any question of law arising in a review under section 34 to the High Court for a determination, and the Commissioner may postpone the making of a decision following the review until such time as he or she considers convenient after the determination of the High Court.

17 2 (6)

18 (a) Where an appeal under this section by a person other than a head is dismissed by the High Court, that Court may, if it considers that the point of law concerned was of exceptional public importance, order that some or all of the costs of the person in relation to the appeal be paid by the public body concerned.

19 (b) The High Court may order that some or all of the costs of a person (other than a head) in relation to a reference under this section be paid by the public body concerned.

20 (7) A decision of the High Court following an appeal under subsection (1), ( 2) or (3) shall, where appropriate, specify the period within which affect shall be given to the decision.

21 (a) The decision of the High Court on an appeal or reference under this section shall be final and conclusive. It is clear that the decision made by the Commissioner is a decision under section 34.

22 2.2. Section 14 applies to a decision made pursuant to this act by a person to whom the function concerned stood delegated at the time of the making of a decision, inter alia, under section 18 in relation to the contents of a statement furnished under subsection 1 of section 18 or to refuse an application under that subsection.

23 The head of the public body concerned, on application in writing by a relevant person may review the decision to which the section applies and, following that review, may affirm or vary or annul the decision in accordance with the Act.

24 Section 4 allows delegation by the head of a public body to a member of the staff of the public body in writing and notified in Iris Oifigiúil.

25 Section 14 (3) provides as follows:

26 (3) A person to whom a function under this section stands delegated under section 4 shall not perform that function in relation to a decision to which this section applies that was made by a member of the staff of the public body concerned whose rank is the same as or higher than that of the person aforesaid.

27 2.3. The appeal is against a decision of the Information Commissioner made on the 11 ^th March, 2002 to exercise his discretionary power under section 34 (9) (ii) of the Act to discontinue his review of the refusal by the Department of Justice of the appellant's application under section 18 (1) of the Act.

28 Section 34 (9) (ii) states:

29 (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 -

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

31 (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."

32 2.4. A decision specified in subsection (1) includes a decision under section 14 which includes, at section 14 (1) (f) a decision under section 18 in relation to the contents of a statement furnished under subsection (1) of that section or to refuse an application under that subsection.

33 2.5. Section 18 states:

34 (1) The head of a public body shall, on application to him or her in that behalf, in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not...