The Minister for Communications, Energy and Natural Resources v The Information Commissioner

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgePresident
Judgment Date06 March 2019
Neutral Citation[2019] IECA 68
Docket Number[2017 No. 256]
Date06 March 2019

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014

BETWEEN
THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES
APPELLANT
AND
THE INFORMATION COMMISSIONER
RESPONDENT
AND
GAVIN SHERIDAN

AND

e-NASC EIREANN TEORANTA (TRADING AS ‘enet’)
NOTICE PARTIES

[2019] IECA 68

[2017 No. 256]

THE COURT OF APPEAL

CIVIL

Freedom of information – Disclosure – Commercial sensitivity – Appellant seeking to appeal the decision of the respondent – Whether the respondent erred in taking the view that documents exempt by statute should be required to be disclosed unless doing so would undermine totally the business of the company to which they related

Facts: The notice party, Mr Sheridan, under the Freedom of Information Act 2014, requested records pertaining to the appointment of eNASC Eireann Teoranta (trading as ‘enet’) as the Management Service Entity (‘MSE’) of the Metropolitan Area Networks (‘MANs’) which were developed under the Regional Broadband Programme. Four categories of records were sought initially, but only one of those remained in issue, that being “any contracts from 2009 between the department and enet in relation to the provision of broadband services via [MANs]”. Those were referred to as ‘Concession Agreements’ in the documentation. Following a consultation process in which enet’s views on the matter were canvassed, the appellant, the Minister for Communications, Energy and Natural Resources, declined the request on confidentiality and commercial sensitivity grounds. On receipt of the decision, Mr Sheridan proceeded to lodge an appeal with the respondent, the Information Commissioner. The Commissioner gave its decision on 30th November 2015, ruling in favour of Mr Sheridan and requiring the Minister to release the Concession Agreement to him. The Minister appealed the decision of the Commissioner to the High Court on a point of law pursuant to s. 24 of the 2014 Act. It was argued that the Commissioner had erred in his interpretation of the 2014 Act in the following respects; (i) by substituting his own test and criteria for that enacted by the Oireachtas in s. 36(2); (ii) by placing onus of proof on the Minister pursuant to s. 22(12)(b) where the said section did not apply because the records in question were subject to an exemption; and (iii) by misinterpreting and misapplying the public interests test found in ss. 35 and 23 in a manner in which the Oireachtas could not have intended. The matter came on for hearing before Noonan J who delivered judgment on 6th April 2017 and dismissed the appeal. The Minister appealed to the Court of Appeal from the decision of the High Court.

Held by Birmingham P that the Commissioner erred when he approached the case on the basis that records exempt by statute were presumed to require disclosure. Insofar as it was not in dispute that the document sought was commercially sensitive, and as much was expressly acknowledged by the Commissioner, Birmingham P held that he erred in looking for exceptional circumstances if the exemption was not to be overridden. Birmingham P held that the Commissioner erred in taking the view that documents exempt by statute should be required to be disclosed unless doing so would undermine totally the business of the company to which they related.

Birmingham P held that the appeal would be allowed.

Appeal allowed.

JUDGMENT of the President delivered on the 6th day of March 2019
Background
1

This is an appeal by the Minister for Communications, Energy and Natural Resources (“the Minister”) from a decision of the High Court (Noonan J.) dated 25th April 2017 which itself dismissed an appeal by the Minister from a decision of the Information Commissioner.

2

The background to the decision of the Commissioner, the appeal to the High Court and now this appeal is to be found in a request by the notice party, Mr. Gavin Sheridan, made under the Freedom of Information Act 2014, seeking records pertaining to the appointment of eNASC Eireann Teoranta (trading as “enet”) (hereinafter enet) as the Management Service Entity (“MSE”) of the Metropolitan Area Networks (“MANs”) which were developed under the Regional Broadband Programme. Four categories of records were sought initially, but only one of those remains in issue at this stage, that being ‘any contracts from 2009 between the department and enet in relation to the provision of broadband services via [MANs]’. These are referred to as “Concession Agreements” in the documentation.

3

Following a consultation process in which enet's views on the matter were canvassed, the Minister declined the request on confidentiality and commercial sensitivity grounds. The bases for refusing on such grounds are found in s. 35(1)(b) and s. 36(1) of the 2014 Act. There was an apparent concern on the appellant's part that the release of the Concession Agreement would damage enet's ability to operate in a competitive manner and would, in effect, penalise it for doing business with the State. The particular disadvantage perceived was that costs and prices would be made public and this could result in enet being undermined by competitors. On receipt of the decision, Mr. Sheridan proceeded to lodge an appeal with the Information Commissioner (“the Commissioner”).

4

The Commissioner gave its decision on 30th November 2015, ruling in favour of Mr. Sheridan and requiring the Minister to release the Concession Agreement to him. It found that by virtue of s. 22(12) (b) of the 2014 Act, that there was a presumption that the refusal was not justified and the Minister had failed to discharge his burden in respect of same. It was the Commissioner's view that the Minister had not shown that there was a ‘reasonable expectation’ of material loss accruing to enet, and accordingly, the first limb of s. 36(1) did not apply. However, the Commissioner considered that the second limb did apply in circumstances where enet's competitive position was prejudiced and proceeded to assess whether, on balance, the public interest in disclosure prevailed. He concluded that disclosure was in the public interest and that non-disclosure of such information could only be justified in exceptional circumstances. With regard to the proposal not to disclose by reference to s. 35, the Commissioner determined that this was not applicable.

5

The Minister appealed the decision of the Commissioner to the High Court on a point of law pursuant to s. 24 of the 2014 Act. It was argued that the Commissioner had erred in his interpretation of the 2014 Act in the following respects;

(i) By substituting his own test and criteria for that enacted by the Oireachtas in s. 36(2);

(ii) by placing on onus of proof on the Minister pursuant to s. 22(12) (b) where the said section did not apply because the records in question were subject to an exemption and

(iii) by misinterpreting and misapplying the public interests test found ss. 35 and 23in a manner in which the Oireachtas could not have intended.

6

The matter came on for hearing before Noonan J. who delivered judgment on 6th April 2017 and dismissed the appeal.

Grounds of Appeal
7

No fewer than twenty-six grounds are referred to in the Notice of Appeal, but they may be summarised as follows:

(i) That the High Court erred in applying judicial review principles rather than those relating to statutory interpretation when dealing with an appeal on a point of law (Ground 1);

(ii) that the High Court erred in finding that the presumption under s. 22(12)(b) applied to exempted records (Grounds 2 to 7, 15, 18);

(iii) that the High Court erred in finding that the Minister was not entitled to raise the point as to the presumption as it had not be raised before the Commissioner (Grounds 8);

(iv) that the High Court erred in its interpretation and application of s. 35 of the 2014 Act (Grounds 9-10, 12, 22);

(v) that the High Court erred in respect of the standards to be applied where there is a claim that material should not be disclosed on grounds commercial sensitivity pursuant to s. 36 (Grounds 13-14,16-19);

(vi) that the High Court erred in its approach to how the balancing exercise with regard to the public interest should operate (Grounds 11, 20-23) and

(vii) that the High Court erred in affording excessive deference to the Commissioner (Grounds 21, 24).

8

The appellant has identified four aspects of the judgment of the High Court which he says were central, these being:

(i) [t]he nature of an appeal on a point of law;

(ii) the onus of proof pursuant to s. 22(12) (b);

(iii) the elements of the public interest test and

(iv) the meaning of s. 35(2).

Nature of an Appeal on a Point of Law
9

The appellant says that the High Court Judge became distracted from the task at hand, being the question of statutory interpretation and instead proceeded as if he was dealing with a judicial review. It is said that a reading of the judgment discloses an inappropriate emphasis on judicial review concepts such as vires, and ultra vires, irrationality, discretion and so on. It said that the Judge was, in effect, tempted into error by submissions on behalf of the Commissioner which invited him to adopt an O'Keeffe-style irrationality test which it is said should have no bearing on the interpretation of a statute or an appeal on a point of law.

10

The appellant says that the approach adopted by the Trial Judge was clearly in conflict with that identified as appropriate by the Supreme Court in Sheedy v. The Information Commissioner [2005] 2 IR 272. There, Kearns J. had quoted McKechnie J. in Deely v. The Information Commissioner [2001] 3 IR 439, as saying:

‘(a) It (i.e.) the Court cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;

(c) it can, however, reverse such inferences if...

To continue reading

Request your trial
6 cases
  • University College Cork v The Information Commissioner
    • Ireland
    • High Court
    • 3 April 2019
    ...error of law established.’ 38 More recently, in Minister for Communications Energy and Natural Resources v. Information Commissioner [2019] IECA 68 (‘ENET’), the Court of Appeal emphasised the distinction between a statutory appeal and the narrower jurisdiction which the court exercises in ......
  • The Minister for Communications, Energy and Natural Resources v The Information Commissioner
    • Ireland
    • Supreme Court
    • 25 September 2020
    ...Energy and Natural Resources (“the Minister”): Minister for Communications, Energy and Natural Resources v. Information Commissioner [2019] IECA 68. 4 The Minister has cross-appealed the findings as to the interpretation and application of s. 35(2) of the 5 This Court granted leave to appea......
  • University College Cork v The Information Commissioner
    • Ireland
    • Supreme Court
    • 25 September 2020
    ...the light of the findings of the Court of Appeal in Minister for Communications, Energy and Natural Resources v Information Commissioner [2019] IECA 68 (Enet); (b) the trial judge erred in the standard of review failing to accord any proper deference or margin of appreciation to the Commiss......
  • Jackson way Properties v The Information Commissioner
    • Ireland
    • High Court
    • 14 February 2020
    ...the decision of the Court of Appeal in Minister for Communications, Energy and Natural Resources v. The Information Commissioner [2019] IECA 68 (the Enet case), this constituted a sufficient identification of the point. He says that once the compliance with the subsection was raised, the po......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT