Sheedy v Information Commissioner

• Jurisdiction: Ireland
• Judgment Date: 30 May 2005
• Neutral Citation: [2005] IESC 35
• Docket Number: [S.C. No. 329 of
• Date: 30 May 2005
• Court: Supreme Court

SHEEDY v INFORMATION COMMISSIONER

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT,

1997

BETWEEN

BARNEY SHEEDY

Appellant

and

THE INFORMATION COMMISSIONER

Respondent

and

THE MINISTER FOR EDUCATION and SCIENCE

First Notice Party

and

THE IRISH TIMES LIMITED

Second Notice Party

[2005] IESC 35

Denham J.

Fennelly J.

Kearns J.

Record No. 339/2004

THE SUPREME COURT

FREEDOM OF INFORMATION:

Appeal

Information Commissioner - Whether release of school reports compiled by Department of Education would enable compilation of information in respect of comparative performance of schools - Extent to which interpretation of Education Act informed by provisions of Freedom of Information Act - Freedom of Information Act 1997 (No 13), ss21(1)(a), 26, 28, 32(1), 34(2) and 42(1) - Education Act 1998 (No 51), s 53 - Release of reports refused (339/2004 - SC - 30/5/2005) [2005] IESC 35, [2005] 2 IR 272; [2005] 2 ILRM 374

Sheedy v Information Commissioner

The appellant appealed against a decision of the High Court refusing to overturn a decision of the respondent granting access to the second named notice party (Irish Times) to redacted versions of reports including a report prepared following an inspection of the primary school where the appellant was principal. The Department initially refused to grant such access on the basis that the disclosure of the reports would enable school league tables to be produced in contravention of s.53 of the 1998 Act. The appeal is based on the grounds that the learned trial judge misdirected himself in law and in fact in his interpretation of and/or his application of s. 53 of the 1998 Act and erred in law and in fact in his interpretation of and/or his application of ss.32 (1) (a), 21 and 26 of the 1997 Act.

Held by the Supreme Court (Kearns, Denham JJ, Fennelly J dissenting) in allowing the appeal: 1. That because of the use of the word 'notwithstanding' at the beginning of s.53 it was not possible to construe the Acts of 1997 and 1998 together, or as forming part of a continuum. The respondent and learned trial judge erred in determining that the information contained in the reports could give rise to highly subjective comparisons being drawn between different schools which would not breach s.53 of the 1998 Act and in finding on that ground that access to the reports was not exempt under s.32 (1) (a) of the 1997 Act. Accordingly, the appeal under s.53 was allowed.

2. That the appellant failed to adduce evidence of prejudice or that a significant adverse effect could result from the granting of access to the reports and further the reports did not contain confidential information. Accordingly the grounds of appeal relating to ss. 21 and 26 of the 1997 Act should

Reporter: L O'S

FREEDOM OF INFORMATION ACT 1997 S21

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S32

EDUCATION ACT 1998 S53

TREATY OF ROME ART 255

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S42(8)

FREEDOM OF INFORMATION (AMDT) ACT 2003 S27

DEELY v INFORMATION CMSR 2001 3 IR 439 2001/5/1298

FREEDOM OF INFORMATION ACT 1997 S42(1)

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 ILRM 421

HENRY DENNY & SONS (IRL) LTD (T/A KERRY FOODS) v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

PREMIER PERICLASE LTD v CMSR OF VALUATION UNREP HIGH 24.6.1999 2000/15/5860

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S14

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

FREEDOM OF INFORMATION ACT 1997 S34

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

FREEDOM OF INFORMATION ACT 19971997 SCHED 1

FREEDOM OF INFORMATION ACT 1997 S2

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

EDUCATION ACT 1998 S53(i)

EDUCATION ACT 1998 S53(ii)

MCLOUGHLIN v MIN FOR PUBLIC SERVICE 1985 IR 631 1986 ILRM 28 1985/6/1397

DPP v GREY 1986 IR 317 1987 ILRM 4 1986/2/498

SEWARD v OWNER OF THE VERA CRUZ (NO 2) 1884-85 10 APP CAS 59

BENNION STATUTORY INTERPRETATION: A CODE 4ED 2002

FREEDOM OF INFORMATION ACT 1997 S32(1)

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S34(2)

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

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

FREEDOM OF INFORMATION ACT 1997 S21(2)

EDUCATION ACT 1998 S53(A)(i)

EDUCATION ACT 1998 S53(A)(ii)

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

EDUCATION ACT 1998 S53(A)

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

FREEDOM OF INFORMATION ACT 1997 S34(12)

FREEDOM OF INFORMATION ACT 1997 S21

EDUCATION ACT 1998 S13

EDUCATION ACT 1998 S13(3)(A)(i)

FREEDOM OF INFORMATION ACT 1997 S26(2)

FREEDOM OF INFORMATION ACT 1997 S26(1)

COCO v AN CLARKE (ENGINEERS) LTD 1968 FSR 415 1969 RPC 41

HOUSE OF SPRING GARDENS LTD & ORS v POINT BLANK LTD & ORS 1984 IR 611

MIN FOR AGRICULTURE v INFORMATION CMSR 2000 1 IR 309 2001 1 ILRM 40 1999/18/5399

CONSTITUTION ART 2

CONSTITUTION ART 9.2.1

BENNION STATUTORY INTERPRETATION 3ED 1997 214

R v LOXDALE 1758 1 BURR 445 97 ER 394

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

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

1 30th day of May, 2005 .

2 I gratefully adopt the summary of the facts and procedural history of this appeal set out in the judgment of Kearns J. I would add that I fully agree with his proposal that the grounds of appeal based on sections 21 and 26 of the Freedom of Information Act, 1997(which I will call "the 1997 Act") should be dismissed. I differ only in respect of the treatment of section 32 of that Act, read with section 53 of the Education Act, 1998("the 1998 Act").

3 The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free access to publicly held information is part of a world-wide trend. The general assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam adopted a new Article 255 of the EC Treaty providing that every citizen of the European Union should have access to the documents of the European Parliament, Council and Commission.

4 The long title to the 1997 Act did something which has regrettably become uncommon. It proclaimed its purposes in a long title. This is deserving of full citation. The 1997 Act is stated to be:

5 "AN ACT TO ENABLE MEMBERS OF THE PUBLIC TO OBTAIN ACCESS, TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST AND THE RIGHT TO PRIVACY, TO INFORMATION IN THE POSSESSION OF PUBLIC BODIES AND TO ENABLE PERSONS TO HAVE PERSONAL INFORMATION RELATING TO THEM IN THE POSSESSION OF SUCH BODIES CORRECTED AND, ACCORDINGLY, TO PROVIDE FOR A RIGHT OF ACCESS TO RECORDS HELD BY SUCH BODIES, FOR NECESSARY EXCEPTIONS TO THAT RIGHT AND FOR ASSISTANCE TO PERSONS TO ENABLE THEM TO EXERCISE IT, TO PROVIDE FOR THE INDEPENDENT REVIEW BOTH OF DECISIONS OF SUCH BODIES RELATING TO THAT RIGHT AND OF THE OPERATION OF THIS ACT GENERALLY (INCLUDING THE PROCEEDINGS OF SUCH BODIES PURSUANT TO THIS ACT) AND, FOR THOSE PURPOSES, TO PROVIDE FOR THE ESTABLISHMENT OF THE OFFICE OF INFORMATION COMMISSIONER AND TO DEFINE ITS FUNCTIONS, TO PROVIDE FOR THE PUBLICATION BY SUCH BODIES OF CERTAIN INFORMATION ABOUT THEM RELEVANT TO THE PURPOSES OF THIS ACT, TO AMEND THE OFFICIAL SECRETS ACT, 1963, AND TO PROVIDE FOR RELATED MATTERS."

6 Section 6(1) of the 1997 Act gives effect to the general principle, thus proclaimed, of public access to documents "to the greatest extent possible consistent with the public interest and the right to privacy" as follows:

7 2 "(1) Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.

8 (2) It shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act—

9 2 (a) in relation to the making of the request under section 7 for access to the record, and

10 3 (b) if the person has a disability, so as to facilitate the exercise by the person of his or her rights under this Act."

11 This is the first appeal under the Act to come before this Court, the Oireachtas having repealed the bar on such appeals contained in section 42(8) of the 1997 Act. (see section 27 of the Freedom of Information (Amendment) Act, 2003.) Prior to now, therefore, all judgments on the operation of the Act have been given in the High Court. McKechnie J made a number of statements of general importance, with which I fully agree, in John Deely v. The Information Commissioner [2001] 3 I.R. 439 at 442

12 "As can thus be seen the clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.

13 It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."

14 In addition, the learned judge made the following observations about the scope and limitations of an appeal taken to the High Court pursuant to section...