Sheedy v Information Commissioner

• Jurisdiction: Ireland
• Judge: Justice Gilligan
• Judgment Date: 20 May 2004
• Neutral Citation: 2004 WJSC-HC 10587
• Court: High Court
• Docket Number: [2003 No. 20 MCA]
• Date: 20 May 2004

2004 WJSC-HC 10587

THE HIGH COURT

[No. 20 M.C.A./2003]

SHEEDY v. INFORMATION COMMISSIONER & ORS

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997

BETWEEN

BARNEY SHEEDY

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

MINISTER FOR EDUCATION AND SCIENCE

FIRST NOTICE PARTY

AND

THE IRISH TIMES LIMITED

SECOND NOTICE PARTY

Citations:

EDUCATION ACT 1998 S53

FREEDOM OF INFORMATION ACT 1997 S21

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S42(1)

EDUCATION ACT 1998 S53(1)(i)

EDUCATION ACT 1998 S53(1)(ii)

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

FREEDOM OF INFORMATION ACT 1997 S26(1)

FREEDOM OF INFORMATION ACT 1997 S6(1)

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 S7

FREEDOM OF INFORMATION ACT 1997 S34

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

AER RIANTA CPT V COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.1.2003 2003/1/141

EEC REG 1049/2001

HAUTALA V EUROPEAN UNION COUNCIL 2002 1 WLR

EEC DEC 93/731

FREEDOM OF INFORMATION ACT 1997 S32(1)(a)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S21(2)

EDUCATION ACT 1998 S13(7)

EDUCATION ACT 1998 S13

EDUCATION ACT 1998 S13(3)(a)

EDUCATION ACT 1998 S13(3)(e)

FREEDOM OF INFORMATION ACT 1997 S26(1)(b)

COCO V AN CLARKE (ENGINEERS) LTD 1969 FSR 415

HOUSE OF SPRING GARDENS V POINT BLANK 1984 IR 611

FREEDOM OF INFORMATION ACT 1997 S26(2)

FREEDOM OF INFORMATION ACT 1997 S26(3)

FREEDOM OF INFORMATION ACT 1997 S34

EDUCATION ACT 1998 S53(a)

Synopsis:

- [2004] 2 IR 533

Facts: The Irish Times successfully appealed a refusal by the Department of Education and Science to allow it access to school reports prepared by the Department. Mr. Sheedy, the principal of one of the schools appealed on a point of law the decision to grant access to the redacted version of the school report pursuant to the provisions of the Freedom of Information Act 1997.

Held by Gilligan J. in refusing the relief sought that the Information Commissioner did not err in his decision setting aside the refusal of the Department in relation to the school report.

Reporter: R.W.

1 Justice Gilligan delivered on 20th day of May, 2004.

2 The appellant is the principal of Scoil Choilm, Armagh Rd., Crumlin, Dublin 12. An inspection of the school was carried out on the 30 ^th March, 2001, by an inspector appointed by the Department of Education. The inspector produced the Tuairisc Scoile on the 30 ^th July, 2001. This report included an examination of matters concerning the school including an introduction dealing with factual background material about the history and location of the school, accommodation, the principal and staff, organisation preparation and planning, languages (English and Irish), mathematics, social and environmental studies, aesthetic and creative activities, special needs pupils, physical education, a post-inspection meeting and a conclusion.

3 The second notice party herein, The Irish Times, applied to the Department of Education under the provisions of the Freedom of Information Act, 1997(the "Act of 1997") for access to a number of Tuairisci Scoile including the report for the appellant's school. The Department refused to grant such access, having regard, inter alia, to s. 53 of the Education Act, 1998(the "Act of 1998") and sections 21, 26 and 28oftheActofl997.

4 The second notice party then sought a review of this decision from the respondent under s. 34(2) of the Act of 1997. The Commissioner, by decision dated 5 ^th March, 2003, set aside the decision of the Department and directed that access be given to redacted versions of the Tuairiscí Scoile for some five schools, including Scoil Choilm. All personal information, within the meaning of s. 28 of the Act of 1997, was excluded from the redacted version. The appellant now appeals, on a point of law, the decision to grant access to the redacted version of the Tuairisc Scoile in respect of Scoil Choilm, to this Court pursuant to the provisions of s. 42(1) of the Act of 1997.

Locus standi

5 A preliminary issue arises with regards the locus standi of the appellant to bring this appeal. Section 42(1) of the Act of 1997 provides:-

"A party to a review under section 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."

6 The respondent submits that the appellant is not a "person affected by the decision of the Commissioner". In support of this, the respondent states that the appellant does not aver in his affidavit that he is appealing this decision on behalf of the school of which he is the principal, or on behalf of the teachers in that school, or that he is authorised by any person to do so.

7 The second notice party further contends that the appellant does not have the requisite locus standi to appeal the impugned decision. It is submitted that during the course of the review the second notice party specifically excluded, from its request for access, all reference to the principals and members of staff of the schools concerned and that this exclusion was incorporated in the Commissioner's decision. The reports, it is submitted, as directed to be released, do not contain any reference to the appellant personally and that consequently there is no detriment, actual or apprehended, to the appellant likely to result from the access directed that affords him locus standi to bring the appeal. The second notice party also submits that the arguments being made by the appellant were of a very general nature and that the appellant failed to show how he was personally affected by the decision of the Commissioner, particularly, how he was so affected more so than anyone else.

8 The appellant claims that he has locus standi being the principal of a school which was the subject of the report. Further, the appellant could not have been party to the dispute between the Department of Education and the Irish Times yet, it is submitted, he is plainly affected by the decision of the Commissioner.

9 I take the view that the applicant as principal of Scoil Choilm Armagh Rd., Crumlin Dublin 12 is a person affected by the decision herein of the Information Commissioner. He avers that he co-operated with the Inspector of the Department of Education and Science in the compilation of the relevant report and did so on the basis of confidentiality and on the assumption that the content of the report thereby compiled would not be made public. Accordingly I am of the view that the appellant has locus standi in respect of the report the subject matter of this appeal.

Appellant's Submissions

10 The appellant advances this appeal on three principal grounds.

11 The first ground relates to s. 53 of the 1998 Act which provides that:-

"Notwithstanding any other enactment, the Minister may -"

12 (a) refuse access to any information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievements of students enrolled therein, including, without prejudice to the generality of the foregoing -

13 (i) the overall results in any year of students in a particular school in an examination, or

14 (ii) the comparative overall results in any year of students at different schools in examination,

15 (b) and refuse access in relation to information in relation to the identity of examiners."

16 The appellant submits that it is clear that the Tuairscí Scoile are not otherwise available to the general public. The Inspector's report in the present case did not disclose any individual marks or performances in examination, so that this case does not come within the specific examples contained in s. 53(1) (i) or (ii). The real question, says the appellant, is whether the release of such reports would "enable the compilation of information ... in relation to the comparative performance of schools in respect of the academic achievements of students."

17 The appellant makes reference to the content of the Scoil Tuairscí and the reality appears to be that the general flavour of the report is highly complementary to the academic standards maintained in the school.

18 The appellant refers to the fact of the Commissioner stating in his decision, in reference to the reports, that "the reports do not contain any specific references to the academic achievements of students in each school. There are no rankings or scoring given either for the school or the students involved ... the comments contained in the report are of such a general and subjective nature that any direct comparison of academic achievement between the schools could not be drawn ... I acknowledge that an analysis of the reports in question could give rise to comparisons being drawn between overall views of the schools. However such comparisons would be highly subjective and I do not believe that any empirical league table of schools, even one based on overall impressions, could be compiled. In any event I do not believe that such information would breach the provisions of s. 53 of the Education Act."

19 The appellant alleges that the Commissioner fell into error in his construction of s. 53 and that his entire focus was on the specific examples which relate to examination performance. He says that s. 53 is not so confined and that the statutory examples given are specifically expressed to be without prejudice to the generality of the section. By definition it is contended that the reference to comparative performance of academic achievement is wider than mere performance at examinations.

20 The second ground upon which this appeal...