Re C.W. Shipping Company Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murphy |
| Judgment Date | 13 January 2004 |
| Neutral Citation | [2004] IEHC 1 |
| Docket Number | [2003 No. 73 MCA],No., 73 MCA/2003 |
| Court | High Court |
| Date | 13 January 2004 |
[2004] IEHC 1
THE HIGH COURT
AND
Citations:
FREEDOM OF INFORMATION ACT 1997 S8
FREEDOM OF INFORMATION ACT 1997 S27
RSC (NO 3) (FREEDOM OF INFORMATION ACT 1997) SI 325/1998 R3
RSC (NO 3) (FREEDOM OF INFORMATION ACT 1997) SI 325/1998 R4
EEC DIR 90/313 ART 4
EEC DIR 90/313 ART 5
FREEDOM OF INFORMATION ACT 1997 S42(1)
FLOOD (PLANNING TRIBUNAL) V LAWLOR 2002 3 IR 67 2001/10/2600
FREEDOM OF INFORMATION ACT 1997 S33(2)
FREEDOM OF INFORMATION ACT 1997 S42
DEELY V INFORMATION CMSR 2001 3 IR 439
RSC O.130 r3
FREEDOM OF INFORMATION ACT 1997 S33
FREEDOM OF INFORMATION ACT 1997 S34
FREEDOM OF INFORMATION ACT 1997 S35
FREEDOM OF INFORMATION ACT 1997 S36
FREEDOM OF INFORMATION ACT 1997 S37
FREEDOM OF INFORMATION ACT 1997 S38
FREEDOM OF INFORMATION ACT 1997 S39
FREEDOM OF INFORMATION ACT 1997 S40
FREEDOM OF INFORMATION ACT 1997 S42(5)
FREEDOM OF INFORMATION ACT 1997 S42(7)
FREEDOM OF INFORMATION ACT 1997 S42(8)
FREEDOM OF INFORMATION ACT 1997 S42(1)
FREEDOM OF INFORMATION ACT 1997 S42(2)
Synopsis:
PRACTICE AND PROCEDURE
Freedom of information
Application to appeal decision of Information Commissioner on point of law to High Court - Whether Information Commissioner required to be named as respondent in notice of motion in such application - Rules of the Superior Courts 1986 Order 130, Rules 3 and 4 - Rules of the Superior Courts (Freedom of Information Act, 1997) 1998 SI/1998 325) - Freedom of Information Act 1997 (2003/73MCA - Murphy J - 13/1/2004)
In re CW Shipping Company Ltd - [2004] 2 IR 321
Facts: The Information Commissioner, pursuant to section 8 of the Freedom of Information Act 1997 granted a requester access to a report in the records of the Department of Communications, Marine and Natural Resources, notwithstanding, in the appellants' submission, that the information contained in the report was commercially sensitive within the meaning of s. 27 of the Act. The applicants appealed that decision on a point of law to the High Court under section 42(1) of the Act of 1997. The Commissioner, notwithstanding her not being made a respondent to the proceedings, entered a conditional appearance. She said she ought to have been named as respondent in the notice of motion served by the applicants on her under Order 130 of the Rules of the Superior Courts 1986, as amended by Statutory Instrument 325 of 1998.
Held by Murphy J in dismissing the applicants' application that a notice of motion was not merely the giving of information that an applicant intended to move the court but allowed the party served to appear and argue before the court if they so chose and that to answer the grounds of appeal in the notice of motion, the Commissioner was entitled to be a party to the proceedings and was a necessary party. Accordingly, the applicants proceedings had not complied with Order 130 of the Rules of the Superior Courts 1986, as amended.
Mr. Justice Murphy, dated 13th January, 2004.
This is an application in respect of a preliminary point of law raised by the Information Commissioner (the Commissioner) who was served with the papers but not included as a respondent that the appellants should have named her as a respondent to the appeal. The substantive matter under appeal is the decision of the Commissioner made the15 th September, 2003, pursuant to s. 8 of the Freedom of Information Act, 1997, to grant a requester access to a report in the records of the Department of Communications, Marine and Natural Resources (the Department), notwithstanding, in the appellants" submission, that the information contained in the report is commercially sensitive within the meaning of s. 27 of the Act.
The procedure relating to such appeal is contained in Statutory Instrument 325 of 1998, the Rules of the Superior Courts (No. 3) (Freedom of Information Act, 1997), 1998 as amended. The following rules are relevant:
Rule 3: The Notice of Motion shall be served within (8) weeks after the notice of the decision concerned is given to the person bringing the appeal. The Notice of Motionshall be served upon the Commissioner and upon any other person affected by the decision the subject matter of the appeal. Service shall be by ordinary prepaid post.
Rule 4: The Notice of Motion shall be entitled "in the matter of the Freedom of Information Act, 1997" and on the application of the appellant.
The appellant says that if the legislature intended any person to be named as a respondent it would have said so. In particular the Statutory Instrument does not provide for the Commissioner to be a respondent but that it be served on the Commissioner.
Detailed submissions were given in relation to the above in that the Commissioner had no locus standi, and was functusofficio. The Commissioner's decision is complete and cannot be the subject of further consideration. The appellant says that both the requester and the Department have a right to appear and fully argue their case. The appellant has served the Commissioner and the Department and has complied strictly with the provisions of Order 130, Rules 3 and 4 referred to above. The appellants also say that the High Court should be jealous to ensure that access to the courts is not made cumbersome and costly. The appellants should not be faced with the burden and costs of taking on a needless adversary in the form of the Information Commissioner. In this regard the appellants referred to CouncilDirective 90/313/EEC of the 7 th June, 1990. Article 4 of that Directive provides as follows:-
"A person who considers that his request for information has been unreasonably refused or ignored, or has been inadequately answered by a public authority, may seek a judicial or administrative review of the decision in accordance with the relevant national legalsystem".
Article 5 provides that "Member States may make a charge for supplying the information, but such charge may not exceed a reasonablecost.
The report from the Commission to the Council and the European Parliament on the experience gained in the application of that Directive, dated the 29 th June, 2000, referred to "several complaints raised the high costs and long delays associated with the review procedures".
The Commissioner, notwithstanding its not being made a respondent to the proceedings, entered a conditional appearance. It said it ought to have been named as respondent as the appellants are appealing its decision of the 15 th September, 2003 which affirmed the decision of the Department of the 7 th January, 2003, to release a report on the use of the foreshore at Cahercon Pier, Kildysart, Co. Clare, to arequester.
No other party is named as respondent, notwithstanding that the appellants adopted the position that the Department or the requester may have...
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