Min for Education v Information Commissioner

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date31 July 2001
Neutral Citation[2001] IEHC 116
Date31 July 2001
Docket NumberNo. 99MCA/1999

[2001] IEHC 116

THE HIGH COURT

No. 99MCA/1999
MIN FOR EDUCATION v. INFORMATION COMMISSIONER
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT1997 AND
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42 (1) OF THAT ACT

BETWEEN

THE MINISTER FOR EDUCATION AND SCIENCE
APPELLANT

AND

THE INFORMATION COMMISSIONER
RESPONDANT

Citations:

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S21(1)(A)

FREEDOM OF INFORMATION ACT 1997 S21(1)(B)

EDUCATION ACT 1998 S53

FREEDOM OF INFORMATION ACT 1997 S32(1)

FREEDOM OF INFORMATION ACT 1997 S6

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S14

FREEDOM OF INFORMATION ACT 1997 S32

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S34(12)

FREEDOM OF INFORMATION ACT 1997 S42

FREEDOM OF INFORMATION ACT 1997 S42(8)

HAMILTON V HAMILTON 1982 IR 466

CRAISE ON STATUTE LAW 7ED 387

O'H V O'H 1990 2 IR 558

JUDICIAL SEPERATION & FAMILY LAW REFORM ACT 1989 S29

MAXWELL ON THE INTERPRETATION OF STATUTES 12ED 220

QUILTER V MAPLESON 1882 9 QBD 672

WILSON V DAGNALL 1972 2 AER 44

AG V BIRMINGHAN TAME & REA DISTRICT DRAINAGE BOARD 1912 AC 788

CHESTVALE PROPERTIES LTD V GLACKIN 1992 ILRM 221

CONSTITUTION ART 43.2.1

MULLINS V HARNETT 1998 4 IR 426

FREEDOM OF INFORMATION ACT 1997 S8(4)

FREEDOM OF INFORMATION ACT 1997 S7(a)

FREEDOM OF INFORMATION ACT 1997 S7(b)

GARDNER V LUCAS 1875 2 AC 582

PAWYS V PAWYS 1971 P 340

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S34(12)(b)

MIN FOR AGRICULTURE V INFORMATION COMMISSIONER 2000 1 IR 309 2001 1 ILRM 40

BENNION ON STATUTORY INTERPRETATION

CONVEYANCING ACT 1881 S14(9)

FREEDOM OF INFORMATION ACT 1997 PART II

Synopsis

FREEDOM OF INFORMATION

Access to records

Education - Statutory interpretation - Information Commissioner - Access to examination results - Right to information - Whether access to records should be granted - Whether legislation retrospective - Freedom of Information Act, 1997 sections 6, 7, 14, 21, 32, 34, 42 - Education Act, 1998 section 53 (1999/99MCA - O Caoimh J - 31/7/01)

Minister for Education and Science v Information Commissioner

FREEDOM OF INFORMATION

Statutory interpretation

Education - Information Commissioner - Declaration sought - Access to examination results - Right to information - Whether access to records should be granted - Whether legislation retrospective - Freedom of Information Act, 1997 sections 6, 7, 14, 21, 32, 34, 42 - Education Act, 1998 section 53 (1999/99MCA - O Caoimh J - 31/7/01)

Minister for Education and Science v Information Commissioner

This was an appeal against the decision of the respondent (“the Commissioner”) to allow certain parties access to records held by the appellant (“the Minister”) of Leaving Certificate examination results. The Minister contended that the Commissioner had erred in his interpretation of the relevant legislation. In addition it was contended that access to the results would prejudice both the operation of the Leaving Certificate and the operation of the Minister’s department. Furthermore an issue arose as to whether the Commissioner was bound to have regard to provisions of the Education Act, 1998 which was passed after the making of the requests for information. Mr. Justice Ó Caoimh held that the Freedom of Information Act, 1997 conferred a prima facie right to information. The hearing of the matter by the Information Commissioner was a de novo hearing and did not preclude him from considering the provisions of the Education Act, 1998. The Minister would have been entitled to refuse the initial request for information. The Commissioner had erred in reaching his decision and the appeal of the Minister would be allowed. Mr. Justice Ó Caoimh also gave judgment in a related case involving several newspapers (see end of main judgment).

Mr. Justice Aindrias Ó Caoimh
1

This is an appeal taken by the Minister for Education and Science (hereinafter referred to as the Minister) pursuant to Section 42 subsection 1 of the Freedom of Information Act1997against the decision of the Information Commissioner (hereinafter referred to as the Commissioner) in relation to requests made by a number of newspapers to it, The Sunday Times, The Sunday Tribune and The Kerryman, whereby subject to terms and conditions set out in his decision, the Commissioner directed the Minister to give these newspapers access to certain records held by the Minister concerning the results of the Leaving Certificate Examinations held in 1998. The Minister further seeks a declaration that the decision and the consequential directions given by the Commissioner in connection therewith are wrong in point of law. A declaration is also sought that the requesting newspapers are not entitled to access to the records requested by them or any of them.

2

The grounds upon which the Appellant brings this appeal are stated as follows:

3

1. The Commissioner erred in law in his construction and/or application of Section 21 (1) (A) of the Freedom of Information Act1997("The 1997 Act").

4

2. Without prejudice to the generality of the foregoing, the Commissioner erred in law and the construction of the said Section by imposing upon the Minister an evidential burden that was excessively onerous and which was not warranted by relevant part of the said Section.

5

3. The Commissioner erred in law in finding that access to the records could not reasonably be expected to prejudice the effectiveness of tests and examination conducted by or on behalf of the Minister and specifically the Leaving Certificate Examination.

6

4. Whether, or in the alternative the Commissioner erred in law in finding that access to the records could not reasonably be expected to prejudice the procedures and/or methods employed for the conduct of the Leaving Certificate Examination.

7

5. The Commissioner further erred in law in this construction and/or application of Section 21 (1) (B) of the 1997 Act.

8

6. Without prejudice to the generality of the foregoing the Commissioner erred in law in his construction of the said Section 21 (1) (B) by imposing upon the Minister an evidential burden that was excessively onerous and which was not warranted by the relevant part of the said Section.

9

7. The Commissioner further erred in law in finding that access to the records could not reasonably be expected to have a significant adverse effect on the performance by the Minister and his Department of any of their functions relating to management, including (but not limited to) industrial relations and management of staff.

10

8. The Commissioner further erred in law in finding that access to the records could not reasonably be expected to have a significant adverse effect on the performance by the Minister and his Department of their functions relating to the planning and allocation of resources to schools in the evaluation and enhancement of the quality of education in secondary schools in the state.

11

9. The Commissioner further erred in law in this construction and/or application of Section 53 of the Education Act1998("The 1998 Act").

12

10. Furtherherein the alternative the Commissioner erred in law in failing to take any or any adequate account of the said Section 53.

13

11. The Commissioner erred in law in findings that the said Section 53 had no application to the requests and subject of this appeal.

14

The decision of the Commissioner related to four requests for access to records pursuant to the provisions of the 1997 Act as these requests related to records of a similar nature and were considered by the Commissioner to raise similar issues under the 1997 Act, the requests were considered together by him and determined on the same basis. The dates of the relevant requests were as follows: the Times Newspapers limited 27th July, 1998, Tribune Newspapers Plc 22nd August, 1998, Connor Keane 20th October, 1998, The Kerryman Limited 20th October, 1998.

15

With regard to the construction and application of Section 21 (1) (A) of the 1997 Act it was and remains the position of the Minister that access to the records could reasonably be expected to prejudice the effectiveness of tests and examinations conducted by or on his behalf specifically the Leaving Certificate Examinations. With regard to the provisions of Section 21 (1) (b) of the 1997 Act it is contended on behalf of the Minister that he was entitled to refuse the requests the subject of this appeal if access to the records could in his opinion, reasonably be expected to have a significant adverse effect on the performance by the Department of any of its functions relating to management (including industrial relations and management of its staff). It is submitted inter alia that the Commissioner failed to attach any or any adequate or sufficient weight to the opinion of the Minister and the Department of the effect of granting access to the records on their functions relating to the planning and allocation of resources to schools and the evaluation and enhancement of the quality of education in secondary schools in the State.

16

A further ground of appeal relates to the provisions of Section 53 of the Education Act in1998. As appears from the decision of the Commissioner he concluded that Section 53 was not retrospective in effect and could not be taken into account by him in determining the requests the subject of this appeal by virtue of the fact that the said requests were initially made prior to the coming into effect of Section 53. The Minister contends that this determination was wrong in point of law in that the Commissioner ought to have taken account of Section 53 and having done so ought to have refused to grant the requests for access to the records in accordance with the provisions of Section 32 (1) of the 1997 Act.

17

The main aspect of this appeal argued before...

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