Minister for Enterprise, Trade and Employment v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 25 January 2006
• Neutral Citation: [2006] IEHC 39
• Docket Number: [2004 No. 56 MCA]
• Court: High Court
• Date: 25 January 2006

[2006] IEHC 39

THE HIGH COURT

No. 56 MCA/2004

MIN FOR ENTERPRISE v INFORMATION COMMISSIONER

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS,

1997– 2003

AND

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42(1)

OF THE SAID ACTS

BETWEEN/

THE MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S10(1)(a)

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S2(5)(a)

FREEDOM OF INFORMATION ACT 1997 S6(9)

FREEDOM OF INFORMATION ACT 1997 S6(11)

FREEDOM OF INFORMATION ACT 19971997 SCHED 1 S1(5)

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

READY MIXED CONCRETE v MIN PENSIONS 1968 1 AER 433

DOLLFUS MIEG ET COMPAGNIE SA v BANK OF ENGLAND 1950 2 AER 605 1950 1 CH 333

O COINDEALBHAIN v MOONEY 1990 1 IR 422 D

EPARTMENT OF JUSTICE v TAX ANALYSTS 492 US 137

D (T) v MIN EDUCATION 2001 4 IR 259

SHEEDY v INFORMATION COMMISSIONER 2005 2 ILRM 374

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

DEELY v INFORMATION CMSR 2001 3 IR 439

FREEDOM OF INFORMATION ACT 1997 S19

FREEDOM OF INFORMATION ACT 1997 S20

FREEDOM OF INFORMATION ACT 1997 S21

FREEDOM OF INFORMATION ACT 1997 S22

FREEDOM OF INFORMATION ACT 1997 S23

FREEDOM OF INFORMATION ACT 1997 S24

FREEDOM OF INFORMATION ACT 1997 S25

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S27

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S29

FREEDOM OF INFORMATION ACT 1997 S30

FREEDOM OF INFORMATION ACT 1997 S31

FREEDOM OF INFORMATION ACT 1997 S32

INDUSTRIAL DEVELOPMENT AUTHORITY ACT 1995 S10 RSC 0.130 r2

FREEDOM OF

INFORMATION ACT 1997 S42(2)

FREEDOM OF INFORMATION ACT 1997 S42(3)

RSC 0.130 r5(c)

RSC 0.130 r5

FREEDOM OF INFORMATION

Access to records

Control - Public body - Review of decision of Information Commissioner - Whether documents under control of public body - Ó Coindealbháin (Insp of Taxes) v Mooney [1990] 1 IR 422 applied - Freedom of Information Act 1997 (No 13), s 10(1)(a) -Rules of the Superior Courts 1986 (SI15/1986), O 130 - Appeal against direction granting access to records allowed(2004/56MCA - Murphy J - 25/1/2006)[2006] IEHC 39, [2006] 4 IR 248

Minister for Enterprise, Trade and Employment v Information Commissioner

Facts: The appellant sought an order discharging the order made by the respondent, whereby the respondent determined that a named individual, who had sought access to internal documentation compiled and presented by Waterford City Enterprise Board Limited (The Board) to its Evaluation Committee, concerning a grant application made by the individual was entitled to access that documentation on the basis that the records were under the control of the appellant. The appellant had previously refused the request for access to the records on the grounds that they related to the day to day operational matters of the Board and were not held by the appellant.

Held by Murphy J. in allowing the appeal: That the appellant did not control the Board and the information requested was not in the possession of the appellant. Consequently, the records sought were not information, which was under the control of the appellant and the decision directing the appellant to grant access to the records ought to be discharged.

Reporter: L.O'S.

1 Judgment of Mr. Justice Roderick Murphy dated the 25th day of January, 2006.

1. Factual background

2 On or about 14th January, 2001 Mr. Michael Freyne (the Requestor) applied to the appellant (the Department) for access to copies of the internal documentation which were compiled and presented by Waterford City Enterprise Board Limited (the Board) to its Evaluation Committee, concerning a grant application made by Mr. Freyne in March, 2000. The request was addressed to the appellant, as the Board is not currently a public body within the meaning and for the purpose of the Freedom of Information Act, 1997, (hereafter "the Act").

3 The Department responded to the Requestor by stating that the overall co-ordination and supervision of the Board was carried out by the Department but that the records the Requestor sought related to the day to day operational matters of the Board and were not held by the Department.

4 A formal refusal pursuant to s. 10(1)(a) of the Act was made. That provided for a refusal to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken ...

5 By letter of 4th February, 2001, the Requestor applied for an internal review of the decision which was affirmed on 27th February, 2001.

6 On 4th March, 2001 the Requestor applied to the Commissioner under s. 34 of the Freedom of Information Acts, 1997– 2003 (hereafter "the Acts") for a review by the Commissioner of the decision of 27th February, 2001 made by the Department. A preliminary views letter dated 2nd June, 2004 was furnished by the investigator dealing with the review in the Commissioner's office to the Department, indicating that it was the investigator's preliminary view that a right of access existed under the Acts on the basis that the records were under the control of the Department pursuant to s. 2(5)(a) of the Acts. The Department made two submissions to the Commissioner on 8th July and 4th August, 2004. The latter focused on s. 2(5)(a) as its justification for refusal of access.

7 In her decision dated 18th October, 2004 the Commissioner considered that having examined the relevant operating agreement between the Department and the Board and the relevant memorandum and articles of association, the Commissioner found that the records were under the control of the Department. She noted that the Board was not proscribed as a public body for the purpose of the Acts. The Commissioner further stated that, in the event that the Department consider any exemption provision(s) to apply in respect of any such records, it was required to send copies of the records in question to her office so that she might make a supplementary decision with regard to any exemptions considered applicable.

2. Appeal

8 The Department initiated the current appeal pursuant to s. 42(1) of the Act against the decision, rendered by letter to Mr. Freyne, and dated 18th October, 2004.

9 Section 2(5)(a) defines the concept of records "held" by public bodies in providing that:

"A reference to records held by a public body includes a reference to records under the control of the body."

10 By originating notice of motion dated 24th January, 2005 the appellant applied for relief in the following terms:

11 1. An order discharging the decision of the respondent (the Commissioner) made on 18th October, 2004 in relation to Case 010147 (request of Mr. Michael Freyne, Waterford Braiding Limited) insofar as the Commissioner annulled the decision of the Department of Enterprise, Trade and Employment (the Department) dated 27th February, 2001, which decision of the Department refused access to Mr. Freyne (the Requestor) to documentation within the possession of Waterford City Enterprise Board (the Board) namely, internal documentation which was compiled and presented by the Board to its Evaluation Committee concerning Mr. Freyne's grant application.

12 2. An order discharging the decision of the Commissioner dated 18th October, 2004 in relation to Case 010147 insofar as the Commissioner directed the Department to grant access to the Requestor to the records.

13 3. A declaration that the said decision and consequential directions given by the Commissioner in connection therewith are wrong in point of law.

14 4. A declaration that the records are not held by the Department for the purpose of the Freedom of Information Act, 1997– 2003.

15 5. A declaration that the records are not under the control of the Department for the purpose of the Act.

16 6. A declaration that the Requestor is not entitled to access to the records within the possession of the Board.

17 7. A declaration that right of access to documentation does not constitute "control" over the said documentation for the purpose of the Act.

18 8. Such orders and directions pursuant to the Act as to this Honourable Court may appear necessary or proper.

19 9. If the court should consider it necessary or proper to do so, an order remitting the request the subject matter of this appeal for further consideration and/or determination by the Commissioner in accordance with law and in accordance with such orders and/or directions as the court may make therein.

20 The extensive grounds detailed in the notice of motion can be summarised as errors of law by the Commissioner in her construction and application of the Acts, in particular in relation to s. 2(5)(a); ss. 6(9) and 6(11) and in relation to the error of law in relation to the Board not being proscribed as a public body and in purporting to direct the Department to exercise its powers in a manner inconsistent with the operating agreement with the Board; that the Commissioner erred in law in construction in the interpretation of s. 10(1)(a) and that the Commissioner erred in law in the construction and/or interpretation of the memorandum and articles of association of the Board.

21 In addition the appellant grounded its application on the Commissioner's usurping or purporting to unlawfully interfere with the powers granted to the Minister for Finance under the Act to proscribe a body as a "public body" and to make access to records of such public bodies by directing the Department to make access to the records and, in doing so, purported to deprive the Minister for Finance of his powers under the Act.

3. Grounding affidavit

22 Mr. Patrick McCourt, Assistant...