University College Cork v The Information Commissioner

• Jurisdiction: Ireland
• Judge: Ms Justice Baker
• Judgment Date: 25 September 2020
• Neutral Citation: [2020] IESC 58
• Date: 25 September 2020
• Docket Number: [S:AP:IE:2019:000100]
• Court: Supreme Court

In the Matter of the Freedom of Information Act 2014 And

In the Matter of an Appeal Pursuant to Section 24 of the Aforesaid Act And Orders 130 and 84C of the Rules of the Superior Courts

Between/

University College Cork

Appellant/Respondent

And

The Information Commissioner

Respondent/Appellant

And

Raidió Teilifís Éireann

Notice Party

[2020] IESC 58

Clarke C.J.

O'Donnell J.

MacMenamin J.

O'Malley J.

Baker J.

[S:AP:IE:2019:000100]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Disclosure – Public interest – Freedom of Information Act 2014 – Appellant appealing against the order of the High Court in a statutory appeal under the Freedom of Information Act 2014 – Whether the trial judge erred in his interpretation of the presumption set out in s. 22(12)(b) of the Freedom of Information Act 2014

Facts: The appellant, the Information Commissioner, appealed against the order of the High Court in a statutory appeal under the Freedom of Information Act 2014. Simons J, for the reasons in his reserved judgment of 3 April 2019, reversed the decision of the Commissioner who had previously directed disclosure of four records: [2019] IEHC 195. He held that the Commissioner had erred in the interpretation and application of the “competitive prejudice” threshold for the purpose of the application of the commercial sensitivity exemption set out in s. 36(1)(b) of the Act, had failed to consider the public interest override in s. 36(3), and had erred in the application of the presumption set out in s. 22(12)(b) of the Act. The Supreme Court granted leave to appeal in its determination of 31 July 2019: [2019] IESCDET 180. The Court granted leave on the following grounds: (a) the trial judge erred in his interpretation of the presumption set out in s. 22(12)(b) of the Act (Ground 2), and in 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 Commissioner (Grounds 4 and10); (c) the trial judge erred in allowing the respondent, University College Cork (UCC), to rely on points which it had not advanced before the Commissioner (Grounds 3 and 8); (d) the trial judge erred in his interpretation of the commercial sensitivity test in s. 36(l)(b) of the Act (Grounds 1, 4, 6 and 9); (e) the trial judge erred in his findings that the Commissioner failed to take into account relevant considerations in his decision (Grounds 3, 5, 7); and (f) the trial judge erred in overturning the Commissioner’s conclusions in respect of the disclosure of records 1, 2, 3, and 4 (Ground 10).

Held by Baker J that: (a) in his interpretation of the presumption in s. 22(12)(b) of the Act the trial judge erred by reason of following, as he was compelled to, the decision of the Court of Appeal in Enet; (b) the judge fell into error in himself attempting to produce an acceptable version of record 1 that might meet the statutory test; (c) the trial judge did not fall into error in regard to record 1, but he should not have permitted UCC to approach the appeal regarding the other records in the way he did; (d) the primary reason the trial judge rejected the approach of the Commissioner was because he considered that she had fallen into error in failing to have regard to relevant considerations and in the approach she took to the presumption contained in s. 22(12) and his approach to that presumption was in error; (e) she was not satisfied that the Commissioner’s approach was correct as she did have a statutory power and corresponding duty to herself assess the records; and (f) because of the errors in the High Court judgment regarding the statutory presumption she would allow Ground 10.

Baker J held that she would allow the appeal and having had regard to the conclusions in Enet, she held that the prudent approach was to remit the matter to the Commissioner for further decision in the light of this judgment.

Appeal allowed.

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

1 This is the leapfrog appeal of the Information Commissioner (“the Commissioner”) against the order of the High Court in a statutory appeal under the Freedom of Information Act 2014, as amended (hereinafter “the Act”). This Court granted leave to appeal in its determination of 31 July 2019, University College Cork v. Information Commissioner [2019] IESCDET 180.

2 Simons J., for the reasons in his reserved judgment of 3 April 2019, reversed the decision of the Commissioner who had previously directed disclosure of four records: University College Cork v. Information Commissioner [2019] IEHC 195. He held that the Commissioner had erred in the interpretation and application of the “competitive prejudice” threshold for the purpose of the application of the commercial sensitivity exemption set out in s. 36(1)(b) of the Act, had failed to consider the public interest override in s. 36(3), and had erred in the application of the presumption set out in s. 22(12)(b) of the Act.

3 As noted in the determination granting leave to appeal, Simons J. followed the decision of the Court of Appeal in Minister for Communications, Energy and Natural Resources v. Information Commissioner [2019] IECA 68, (hereinafter “Enet”) in respect of which leave to appeal was also granted by the Court: Minister for Communications, Energy and Natural Resources v. Information Commissioner [2019] IESCDET 179. the judgment in which is delivered today. The appeals were heard together.

4 The main issue of law to be decided in this appeal is the correct interpretation and application of s. 36(1)(b) of the Act. The judgment in Minister for Communications, Energy and Natural Resources v. Information Commissioner contains an analysis of the overall system created by the Act, of the presumption in s. 22(12) and of the public interest override in s.35(3) and 36(3).

Background facts

5 In November 2016. University College Cork (“UCC”) agreed a €100 million loan agreement with EIB to support a €241 million development plan involving a range of projects including, inter alia, student accommodation, a €37 million investment in a new dental school, and funding of a campus development costing €27 million.

6 On 6 January 2017 Raidió Teilifis Éireann, the Irish national broadcaster notice party (“RTÉ”), through John Cunningham, a journalist in its investigative unit, made a freedom of information request (“the FOI request”) to the Freedom of Information Officer of UCC. The request sought access to various records of “financial management within UCC” regarding the loan provided to UCC by EIB.

7 UCC identified the records falling within the scope of the request as the finance contract between UCC and EIB of 11 July 2016 and internal UCC records including memoranda of Finance Committee meetings regarding the loan application, the cashflow, the loan agreement, matching funding, and withdrawals in 2016 from the loan account.

8 UCC maintained that the information requested was commercially sensitive and fell within the exemption in s. 36(1)(b) of the Act. and refused to grant the FOI request on the grounds that the disclosure of such records:

” […] would prejudice the competitive position of private third parties in the conduct of their business, would result in a material financial loss to those organisations and would decrease the likelihood of meaningful engagement by private firms willing to partner with the University. This would discourage such agencies/companies from working with UCC in the future which would, in turn, have a detrimental effect on the University's ability to fulfil its objects and to combine with external private bodies for that purpose.”

9 In its response, UCC considered the public interest in s. 36(3) of the Act:

“[…] the public interest arguments in favour of release (the general right of access under the FOI legislation to records held by UCC and the transparency of the process) are outweighed by the arguments against release (namely, that the granting of access would result in the company involved being commercially disadvantaged by the disclosure). The University's ability to contract with external bodies is in many instances critical to fulfilling institution objectives in the public interest. Release of information relating to third parties which would be deemed commercially sensitive to those parties would restrict the University's ability to attract such parties to engage with or partner with the University in the future.”

10 RTÉ sought an internal review of that decision pursuant to s. 21(2) of the Act, and by its decision dated 25 April 2017, UCC's Freedom of Information Internal Review Board recommended that the disclosure be refused.

11 The President of UCC accepted the recommendation and refused disclosure for the reason that it:

“would decrease the likelihood of meaningful engagement by private firms willing to partner with the University. This in turn would have a negative impact on the University's ability to fulfil its institutional objectives and attract external bodies for that purpose,” and that “the public interest would be better served by the exemption of the records in question.”

12 RTÉ sought a review by the Commissioner pursuant to s. 22(2) of the Act. The review was conducted by a Senior Investigator in the Office of the Information Commissioner, Ms Elizabeth Dolan, who was authorised by the Commissioner pursuant to s. 9 of Schedule 2 to the Act to issue the decision. For ease, I will refer to her as “the Commissioner”.

13 The Commissioner thereafter invited UCC to make submissions under s. 22(8) and set out the legal basis on which she proposed to consider the review: that under s. 22(12)(b) of the Act the burden was on UCC to justify its decision to refuse access to...