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

• Jurisdiction: Ireland
• Judge: Ms Justice Marie Baker
• Judgment Date: 25 September 2020
• Neutral Citation: [2020] IESC 57
• Date: 25 September 2020
• Docket Number: S:AP:IE:2019:000101
• Court: Supreme Court

In the Matter of the Freedom of Information Act 2014

Between/

The Minister for Communications, Energy and Natural Resources

Appellant/Respondent

And

The Information Commissioner

Respondent/Appellant

And

Gavin Sheridan

And

E-Nasc Éireann Teoranta (t/a “enet”)

Notice Parties

[2020] IESC 57

Clarke C.J.

O'Donnell J.

MacMenamin J.

O'Malley J.

Baker J.

S:AP:IE:2019:000101

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Ms Justice Marie Baker delivered the 25 ^th day of September, 2020

1 The Freedom of Information Act 2014 (“the Act”) consolidated and modernised the law relating to access by members of the public to records of public bodies and non-public bodies in receipt of State funding. These appeals concern the means by which public interest considerations are to be engaged when records are commercially sensitive or confidential.

2 The Information Commissioner (“the Commissioner”) appeals the order of the Court of Appeal made on 10 April 2019 reversing the decision of Noonan J.: Minister for Communications, Energy and Natural Resources v. Information Commissioner [2017] IEHC 222.

3 The judgment of Birmingham P., with whom Irvine J. (as she then was) and McGovern J. agreed, found that the Commissioner erred in his approach to records in respect of which an exemption was claimed by the requested body, the Minister for Communications, 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 Act.

5 This Court granted leave to appeal and to cross-appeal in its determination of 31 July 2019, Minister for Communications, Energy and Natural Resources v. Information Commissioner [2019] IESCDET 179, on the ground that the issues raised may be of systemic importance to the operation of the legislation, and granted leave on the same day in University College Cork v. Information Commissioner [2019] IESCDET 180. The appeals were heard together. This judgment mostly concerns the provisions of s. 22(12)(b) of the Act as they apply to an exempt record and in the context of the public interest balancing test in s. 36(3).

6 It is useful to first discuss the terminology and general procedures for the disclosure of records under the Act.

General terminology and FOI request procedure

7 By s. 11, the Act creates the right of “every person” to seek disclosure of a record held by a public body or a body which receives amounts of public funding (an “FOI body”). A request to access records is made under s. 12 of the Act and is termed an “FOI request” under s. 2(1).

8 The definition of a public body for the purposes of the Act gives rise to no difficulty in the present appeal, as any department of State is expressly included in the definition of “public body” in s. 6(1)(a). Also of note, for the purposes of the related appeal, is the inclusion within such definition, in s. 6(1)(g), of a higher education institution in receipt of public funding.

9 The records to which access may be requested include a book or other written or printed material in any form, including electronic form, and also documents such as maps, plans, drawings, discs, films, or a copy of any one of those documents. Records amenable to a request for access are those created after the date of coming into operation of the Act, i.e. 14 October 2014, or those otherwise prescribed by the Minister.

10 The person who makes an FOI request is somewhat inelegantly called a “requester”. The requester makes a request in writing, or by such other form as may be determined, addressed directly to the FOI body in question, saying that the request is made under the Act, and providing sufficient information to identify the records concerned.

11 The FOI request is directed to the “head” of the relevant FOI body listed in s. 2(1) of the Act to include, inter alia, the Attorney General in relation to the Office of the Attorney General, the Director of Public Prosecutions in relation to the Office of the Director of Public Prosecutions and in the case of a Department of State, the relevant Minister, and, in the case of any other FOI body not expressly referred to in the section, the person who holds or performs the function of the office of chief executive officer, irrespective of the name by which that person is known. Most public bodies operate a system by which the request for disclosure of records is dealt with by a designated office.

12 Provision is made in s. 20 for the delegation to a member of staff of the FOI body of any functions under the Act and, in s. 21, for a full “internal review” by the head of the FOI body of any decision made by a delegate. The review may result in an affirmation, variation, or annulment of the initial decision, and the making of a fresh decision, and therefore, is not constrained by any principles of deference, or limited only in a review of the legality or procedural correctness of the decision already made.

13 An FOI request must contain “sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps” under s. 12(1)(b) of the Act. Non-compliance with that provision by a requester is an administrative ground for the refusal to grant the request, but only if the FOI body assisted or offered to assist the requester in meeting the requirement, pursuant to section 15(1)(b), as modified by s. 15(4).

14 Section 11(2) places the FOI body under the general duty to give reasonable assistance to a requester. Moreover, an FOI body is specifically required to publish rules, procedures, guidelines, practices, interpretations used, and any precedent kept by it regarding its decisions, determinations and recommendations. It must publish the names and designations of the members of staff responsible for providing services to the public, and provide information as to the right of review or appeal from its decisions and the procedures governing the exercise of those rights of review or appeal.

15 An overriding supervisory jurisdiction of compliance with these requirements of publication is given to the Commissioner by Part 6 of the Act.

16 The head of the FOI body has an obligation to ensure that the request is transmitted to such other body which he or she considers holds or might hold the relevant records, and to inform the requester of that.

17 Provision is made for the charging of a fee for access in certain cases.

18 Section 13(4) provides that in coming to a decision whether to giant or refuse access, the head of the FOI body is to disregard the reason the requester gives for the request, or any belief or opinion of the head as to the real reason for the request. This safeguard imports an objective mechanism by which the request is to be considered, and prevents the head of the FOI body coming to a decision to refuse or grant the request merely on account of the identity of the person making the request, e.g. to grant in all cases to certain classes of persons such as journalists, or the refusal to certain classes of persons such as persons believed to have a political motivation for wanting a record.

19 Section 14 of the Act provides for an extension of the period for consideration of the request by a further maximum of four weeks.

20 The head of an FOI body may refuse a request under s. 15(1) of the Act, inter alia, if the record concerned “does not exist or cannot be found” after all reasonable steps have been taken (sub-s. (1)(a)), if “the information is already in the public domain” (sub-s. (1)(d)), if the retrieval or examination of the record would cause “a substantial and unreasonable interference with or disruption of work” of the FOI body (sub-s. (1)(c)), if the information is intended to be put in the public domain by the FOI body within six weeks from receipt of the FOI request (sub-s. (1)(f)), if the request is in the opinion of the head of the FOI body “frivolous or vexatious” or is “part of a pattern of manifestly unreasonable requests” (sub-s. (1)(g)).

21 The offering of access to the record may be deferred pursuant to the provisions of s. 16.

22 The manner of access to records is provided in s. 17 and includes an opportunity to copy, inspect, hear, or view the record, or a combination of these.

23 Express provision is made in s. 18 for the provision of access to part only of records, if this is practicable, and where the record would otherwise fall to be granted but for the fact that it contained an exempt record.

Review by the Commissioner: procedure

24 The Commissioner is an independent expert with power to review any refusal, whether full or partial, of a request. Application for a review may be made by a “relevant person” as defined in s. 22(2) of the Act to include a requester, or a person who has a “material interest” under s. 10. The Commissioner may annul, vary, or affirm the decision, and substitute a new decision.

25 Provision is made in the Act for the procedural steps to be taken by the Commissioner on receipt of an application for review. A copy is to be sent to the head of the FOI body concerned, or any other relevant person, and the head of the FOI body is required thereafter to give to the Commissioner particulars of any person who might have been notified where a decision as to exemption is under consideration. Notification is to any third party who might be impacted by the decision. Thereafter, the head of the FOI body, or any other relevant person, may make submissions and the Commissioner is to “take any such submissions into account for the purposes of the review”: s. 22(8).

26 Following the decision-making process, the Commissioner notifies the decision to the head of the FOI body, the relevant person concerned, and any other person to whom notice...