McKillen v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 19 January 2016
• Neutral Citation: [2016] IEHC 27
• Docket Number: [2015 No. 4 MCA]
• Court: High Court
• Date: 19 January 2016

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997-2003

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42 OF THE FREEDOM OF INFORMATION ACT 1997

BETWEEN

PATRICK MCKILLEN

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

THE MINISTER FOR FINANCE

NOTICE PARTY

[2016] IEHC 27

Noonan J.

[2015 No. 4 MCA]

THE HIGH COURT

The Freedom of Information Act 1997-2003 – Appeal against the decision of the Information Commissioner – Access to records

Facts: The appellant had filed an appeal against the decision of the respondent refusing to allow access of some of the redacted records to the appellant which were held by the notice party. The appellant alleged that it was necessary in the public interest to expose the conduct of the Government Department that was favouring the persons taking over the business of the plaintiff and thus causing great loss to the exchequer.

Mr. Justice Noonan dismissed the appeal of the appellant. The Court held that it would not interfere with the decision made by the respondent unless it was shown that the said decision was made without any evidentiary basis or devoid of fundamental reason and common sense. The Court held that it was bound by the dicta of O'Neill J in EH v. The Information Commissioner [2001] 2 I.R. 463 that a party obtaining the production of documents by discovery in an action gave an implicit undertaking to the court that he or she would not make any use of the documents or the information contained therein otherwise than for the purpose of the action, and in such circumstances, disclosure must be refused.

JUDGMENT of Mr. Justice Noonan delivered the 19th day of January, 2016

Introduction

1 This matter is an appeal on a point of law pursuant to s. 42 of the Freedom of Information Act 1997, as amended, against the decision of the respondent dated the 14th of November, 2014. At all material times, the appellant was the largest shareholder in an entity known as the Maybourne Hotel Group in London which owned a number of well known hotels. The appellant says that a hostile takeover bid of the Maybourne Hotel Group was launched by Sir David Barclay and Sir Frederick Barclay (‘the Barclay brothers’) which was vigorously opposed by the appellant. This led to litigation in the High Court of England and Wales in 2012. The appellant alleges that as part of the Barclay brothers' strategy in pursuing the takeover bid, they sought in 2011 to acquire certain personal and corporate loans of the appellant with Irish Bank Resolution Corporation and to that end lobbied various parties including the Minister for Finance and the National Asset Management Agency.

2 By letter of the 21st of August, 2012, the appellant requested from the notice party access to records concerning him or his personal or business loans held by the notice party. The appellant indicated that he wished to access any records concerning an approach concerning any individual or business seeking information about his loans or lobbying for the opportunity to acquire personal or business loans in which he had an interest.

Chronology of Relevant Events.

3 21st of September, 2012 - the notice party responded to the appellant's request for information by letter enclosing a tabulated schedule of records which the notice party considered to be relevant to the appellant's request. Each ‘record’ appears to comprise an item of correspondence or a chain of email communication. The schedule disclosed that there were 19 such records and in the case of each record, a variety of columns was used to describe the record and its date, to specify the decision on whether to grant, part grant or refuse access and the reason for the decision, inter alia. In the case of 13 of the records, the notice party refused access and in the case of the other 6 records, access was granted in part subject to redactions.

4 3rd of January, 2013 - the appellant sought an internal appeal of the decision.

5 23rd of January, 2013 - the result of the internal appeal was to confirm the original decision subject to variation in the case of records 8 and 11 by removing some of the redactions.

6 5th of February, 2013 - the appellant applied to the respondent for a review of the notice party's decision.

7 28th of March, 2013 - the respondent wrote to the appellant indicating that she had agreed to carry out a review and that the appellant could make submissions to be received by the 19th of April, 2013. This letter was accompanied by an information leaflet entitled ‘Important Information for Requesters’ which included advice about making submissions. This stated that although submissions are not strictly necessary, it is recommended that the requester bring any relevant matters to the attention of the investigator assigned by the respondent.

8 15th of April, 2013 - the appellant wrote a letter making submissions in relation to the matter.

9 19th of February, 2014 - Ms. Brenda Lynch, an officer of the respondent, telephoned Ms. Breda Keena, the appellant's representative, to advise Ms. Keena that she had been assigned the review. She told Ms. Keena that the notice party had revised its position in relation to some of the documents, and these revised documents had now been received and would be examined by her the following week. Ms. Keena appears to have referred to litigation between the appellant and the notice party and the fact that a discovery order had been made in that litigation.

10 7th of March, 2014 - Ms. Lynch emailed the notice party enquiring as to whether an order for discovery had been made against the notice party and if so, were the 19 records relevant to the review encompassed by the order for discovery. Subsequently Ms. Lynch telephoned Ms. Keena about this issue and Ms. Keena indicated that she would check if a discovery order had been made against the notice party and if records had been provided on foot of such order. Ms. Lynch further advised Ms. Keena that a release of such records under FOI could be contempt of court if amounting to a possible breach of the implied undertaking under discovery.

11 10th of March, 2014 - Ms. Keena emailed Mr. Hugh Millar of Crowley Millar who appears to have represented the appellant in his litigation against the notice party. In this email, Ms. Keena informed Mr. Millar that she had received a telephone call from Ms. Lynch asking them to consider whether they had been supplied with FOI documents through discovery and to consider the legal implications of this under FOI legislation. She conveyed to Mr. Millar Ms. Lynch's view that if the FOI documents had been supplied through discovery, they cannot be supplied through FOI and they needed to consider the implications carefully and revert to Ms. Lynch.

12 13th of March, 2004 – 11.10. Mr. Millar emailed Ms. Keena in the following terms:

‘I am not aware of any legal implications of progressing the FOI appeal. I discussed this at a meeting with senior and junior counsel today and they share my views. None of us understand the point the Commissioner's office is making.

I suggest you seek clarification by email of the legal issue and then forward the reply to me. Absent clarification there seems to me to be no reason why the appeal should not progress. If and when discovery is necessary in any future proceedings that will be addressed in the normal course of events.’

13 15.06 – the notice party emailed Ms. Lynch to advise her that a discovery order had been made against the notice party which captured a significant number of the FOI documents.

14 15.58 – Ms. Keena forwarded Mr. Millar's email to Ms. Lynch asking for clarification.

15 16.57 – Ms. Lynch emailed Ms. Keena explaining the potential difficulty that arose from discovery and quoted a previous decision of the respondent in relation to the operation of s. 22 (1) (b) of the FOI Act. This decision explains that it is a rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action. The decision goes on to refer to the judgment of the High Court in EH v. The Information Commissioner [2001] 2 I.R. 463 in which O'Neill J. stated that in such circumstances, disclosure must be refused. Ms. Lynch went on to explain her understanding that an order for discovery had been made against the notice party and most of the 19 records the subject of the FOI request were provided in response to the discovery order. Ms. Lynch said she was awaiting details of the records provided. Ms. Lynch concluded by saying that access to any records provided under discovery must be refused under FOI on the basis of s. 22 (1) (b).

16 17.17 – Ms. Keena replied saying she would forward Ms. Lynch's email to the legal team.

17 14th of March, 2014 – 9.28. The notice party emailed Ms. Lynch indicating which of the FOI documents had been the subject of the discovery order. According to this email, record 5 had not been discovered but records 6 to 16 inclusive had been discovered. (Records 5 to 16 are the subject matter of this appeal).

18 14.48 – Ms. Lynch emailed Ms. Keena advising her that she had today been advised by the notice party that records 6 to 16 inclusive had been provided under the order for discovery and so the position set out in her email of the previous afternoon relates to these records. She said she would be examining the notice party's position on records 1 – 5.

19 17.10 – Ms. Keena emailed Ms. Lynch saying that the appellant's lawyer had recommended that they proceed with the appeal and they would leave it to Ms. Lynch to make a decision on the remaining records.

20 20th of March, 2014 - Ms. Lynch emailed the notice party saying she had reviewed the documents and since...