Minister for Education and Science v Information Commissioner

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IEHC 279
• Docket Number: [No. 12 MCA/2006],[2006 No. 12 MCA]
• Date: 31 July 2008

Min for Education & Science v Information Commissioner

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997, AS AMENDED

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

RESPONDENT

[2008] IEHC 279

[No. 12 MCA/2006]

THE HIGH COURT

FREEDOM OF INFORMATION

Access to records

Government - Draft memorandum prepared for Minister to submit to cabinet - Not submitted to cabinet - Whether document exempt document - Whether Minister entitled to refuse access to document - Whether submissions could be made to court that were not made before Information Commissioner - Minister for Agriculture v Information Commissioner [2000] 1 IR 309, Deely v Information Commissioner [2001] 3 IR 439, Sheedy v Information Commissioner [2005] IESC 35, [2005] 2 IR 272, NMcK v Information Commissioner [2006] IESC 2, [2006] 2 IR 260, Attorney General v Hamilton [1993] 2 IR 250, South Western Area Health Board v Information Commissioner [2005] IEHC 177, [2005] 2 IR 547 and Murray v Irish Airlines (General Employees) Superannuation Scheme [2007] IEHC 277, [2007] 2 ILRM 196 applied - Freedom of Information Act 1997 (No 13), s 19(1) - Appeal allowed (2006/12MCA - McGovern J - 31/7/2008) [2008] IEHC 279

Minister for Education v Information Commissioner

FREEDOM OF INFORMATION ACT 1997

FREEDOM OF INFORMATION ACT 1997 S19(1)(a)

FREEDOM OF INFORMATION ACT 1997 S19(1)(c)

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S19(1)(b)

FREEDOM OF INFORMATION ACT 1997 S7

WILLIAM JAMES MURRAY v TRUSTEES & ADMINISTRATORS OF IRISH AIRLINES (GENERAL EMPLOYEES (SUPERANNUATION) SCHEME 2007 2 ILRM 196

SOUTH WESTERN AREA HEALTH BOARD v INFORMATION CMSR 2005 2 IR 547

RESIDENTIAL INSTITUTIONS REDRESS SCHEME 29.11.2002

SHEEDY v INFORMATION CMSR 2005 2 IR 272

MCK (N) v INFORMATION CMSR 2006 1 IR 260

MIN FOR AGRICULTURE v INFORMATION CMSR 2000 1 IR 309

DEELY v INFORMATION CMSR 2001 3 IR 439

AG v HAMILTON (NO 1) 1993 2 IR 250

CONSTITUTION ART 28.4.1

CONSTITUTION ART 28.4.2

1 Mr. Justice Brian McGovern delivered on the 31st day of July, 2008

2 1. In these proceedings, the Minister appeals against the decision of the Information Commissioner (hereinafter referred to as "the Commissioner") that a document known as Record No. 32 is not an "exempt record" within the meaning of the Freedom of Information Act 1997, and her construction of s. 19 (1) (a) arid s. 19 (1) (c) thereof. The applicant submits that the respondent erred in law in concluding that Record No. 32 is not an "exempt record".

3 2. The legislation provides that where a decision is made to refuse a request under the Act, this can be reviewed by the Commissioner, pursuant to s. 34 of the Act. The Act provides that a decision to refuse to grant a request,

"... shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." See s. 34 (12) (b) of the 1997 Act.

4 3. Section 42 (1) of the Act, provides that a:

"... party to a review under s. 34, or any other person affected by the decision of the Commissioner following such a review, may appeal to the High Court on a point of law from the decision."

5 There are procedures in the Act which allow for the hearing to be in camera so as to avoid disclosure to the public of the documents until the matter has been decided. In this case the Court made such a ruling in view of the nature of the document being considered.

6 4. This case concerns "Record No. 32" which is a Draft Memorandum for Government, prepared in July 2001, which was not, in fact, submitted by the Minister to Government. Because the Memorandum was not sent to Government, the Commissioner took the view that s. 19 (1) (a) of the Act, did not apply to it. She also held that Record No. 32 was not "a record of the Government" so that s. 19 (1) (b) did not apply. In giving her reasons for her decision, the Commissioner also stated that she:

"...considered whether the Memorandum, as prepared, contains information (including advice in the form of a proposal and recommendation in his name) for a member of the Government, (the Minister) for use by him in such a way as would bring Record No. 32 within the scope of the exemption provided by s.19(1)(c)..."

7 Given that the Minister decided not to proceed on the basis of what had been prepared in the form of this record, he did not use the information (including advice) prepared for him, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government. For that reason, she decided that Record No. 32 did not fall within section 19 (1) (c).

8 5. I propose to deal with s. 19 (1) (c) first. This provides that a head of a public body, as defined in the Act, shall refuse to grant a request under s. 7, if the record concerned :-

"(c) Contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government, or the Assistant Secretary to the Government, for use by him or her, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government".

9 6. The Commissioner complains that the applicant made no argument to her, based on s. 19 (1) (c), but confined his arguments to s. 19 (1) (a). This, indeed, appears to be the case. Accordingly, the Commissioner argues that the applicant should not be permitted to make submissions in his appeal against her decision, based on section 19 (1) (c).

10 7. The court should be slow to admit a new argument not advanced before the Commissioner. In the area of criminal law, the Court of Criminal Appeal has repeatedly stated that it will be reluctant to entertain arguments on appeal which were not made at the original trial. In William James Murray v. the Trustees and the Administrators of the Irish Airlines (General Employees) Superannuation Scheme [2007] 2 I.L.R.M. 196, Kelly J. refused to allow additional evidence where the parties seeking to adduce the evidence made submissions to the Pensions Ombudsman on two occasions and never sought to introduce that evidence which was available. Although the case concerns evidence and not legal arguments or submissions, it is of some general relevance to the Commissioner's argument. In South Western Area Health Board .v. Information Commissioner [2005] 2 I.R. 527, the issue of whether or not the High Court could entertain a point on appeal that was not raised before the Commissioner during the course of review was the subject of comment. Smyth J. said:

"... it would be wholly unsatisfactory that a decision on appeal should be made without the matter having first been raised before the Commissioner.

In my judgment the Commissioner was correct in his submissions that it was undesirable that as a matter of policy that a party in the position of the appellant would not advance all relevant arguments to the Commissioner in the first instance."

11 If no submission was made by the Minister to the Commissioner that the records were exempt, pursuant to s. 19 (1) (c), it is difficult to see why the Minister should be permitted to make such an argument in this appeal, unless it could be shown that there was some public policy or constitutional issue to be protected. If the matter can be dealt with by reference to s. 19(1) (a), which was raised both before the Commissioner and on this appeal, then this would seem to be the proper way of disposing of the matter.

12 8. For the reasons which I will set out below, I am satisfied that this matter can be dealt with on the basis of s. 19 (1) (a) and I propose dealing with it on that basis.

13 9. Section 19(1) (a) states:

"(1) A head shall refuse to grant a request under section 7 if the record concerned -"

14 2 (a) has been, or is...