Westwood Club v Information Commissioner and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 15 July 2014
• Neutral Citation: [2014] IEHC 375
• Court: High Court
• Docket Number: [2013 No. 176 MCA]
• Date: 15 July 2014

Westwood Club v Information Cmsr & Anor

JUDICIAL REVIEW

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997 - 2004 AND

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42(1) OF THE SAID ACTS

BETWEEN

WESTWOOD CLUB

APPELLANT

AND

INFORMATION COMMISSIONER

RESPONDENT

AND

BRAY TOWN COUNCIL

NOTICE PARTY

[2014] IEHC 375

[No. 176 MCA/2013]

THE HIGH COURT

Practice and Procedure – Confidential Materials – Freedom of Information – Private Company – Local Council – Membership – Loans – Financial Affairs – Public Interest

Facts: In these proceedings, Westwood Club (the appellant), challenged a decision of the respondent (the Commissioner) which affirmed the refusal of the Notice Party, Bray Town Council (Council), to grant access to the Appellant to any records held by the Council concerning Bray Swimming Pool and Sports Leisure Centre Limited (Shoreline). Shoreline had been set up by the Notice Party by a resolution dated 17th April, 2007. The company was at that stage in the process of being formed for the purposes of operating a swimming pool. A contract for construction was signed on 12th April, 2007, endorsed by the Cathaoirleach of the Notice Party. The minutes of the Notice Party stated that the reason that Shoreline was being set up was to operate leisure facilities so as not to become a drain on Council resources. The number of directors was also limited so as to facilitate speedy decision-making and a board was subsequently formed consisting of directors of nominating bodies approved by the Town Council and a number of members of Bray Town Council. Part of the funding was awarded by the Department of Arts, Sport and Tourism for the project with the balance being funded from the Council and there was a decision of the Notice Party 'to guarantee its wholly owned subsidiary'. Over €10m was, in fact, provided to Shoreline by way of a loan from the Notice Party. The leisure centre was built on the Notice Party"s land and occupied by Shoreline originally without any lease and subsequently a lease was granted to Shoreline by the Notice Party at what was accepted to be an uneconomic rent. In order to establish the funding relationship between Shoreline and the Notice Party, Mr. Paul Begley, on behalf of the Appellant, requested access to the financial records of Shoreline for 2008 and 2009 by letter dated 21st April, 2011. The request was sent to the secretary of Shoreline at the Notice Party"s civic offices. The request sought a detailed breakdown of income and expenditure for 2008 and 2009. That request was replied to by the Freedom of Information Officer for Wicklow County Council by letter dated 10th May, 2011, who informed the Appellant that as Shoreline was a private company, it was not subject to the provisions of the Freedom of Information Act ('the Act'). By letter dated 31st May, 2011, the Appellant advised the FOI Officer that it was amending its request to all records held by the Notice Party in relation to Shoreline. The letter referred to the fact that the Notice Party owned 100% of the share capital of shoreline and that the three directors were all local authority employees. By letter dated 29th June, 2011, the FOI Officer for Wicklow County Council responded to the Appellant stating again that that information was held by a private company which was not subject to the provision of the Freedom of Information Acts. The Appellant then exercised its right of appeal by letter of 1st July, 2011, to the County Manager of Wicklow County Council which appeal noted, inter alia, that the Appellant failed to see how that Bray Town Council as 100% shareholder and owner held no financial records of the company. In response, Ms. Lorraine Gallagher, Acting Director of Services for the Council responded by letter dated 26th July, 2011, which summarised correspondence to the then date and gave reasons for affirmation of the original decision which may be summarised as: (1) Shoreline was a private limited company which operated as a commercial company, it was not employed by or delivered services to the Notice Party, it delivered services to its members. A private company was a separate legal entity and therefore not subject to the provisions of the Freedom of Information Act legislation; (2) Under the FOI Acts a company which carried out services under contract to public bodies, for example, a cleaning company, came within the ambit of the FOI regime but only to the extent that those records of that company related to services actually provided to the public body; (3) The Acts also stipulates that a company which was funded directly or indirectly by a Government Minister comes within the FOI regime. While the construction of the pool was part funded by the Department of Arts, Sports and Tourism it noted 'no funds were paid to this company by the Department. Therefore that company was not funded directly or indirectly by a government body and was not subject to the provisions of the Freedom of Information Acts; (4) Shoreline entered into a lease agreement with the Notice Party to operate the facility, it acted as a private company and engaged in all normal day to day operational issues of such a facility; and (5) The record specifically requested and not held by the Notice Party, the published accounts of Shoreline where publicly available on the company"s website. Any records held by officials of the Notice Party relating to the finances of Shoreline where held by them in their capacity as offices of the company and not of the Notice Party. That refusal was appealed to the office of the Information Commissioner (the Respondent) by the Appellant by letter dated 10th August, 2011. The appeal noted that the directors of Shoreline were obliged to prepare financial statements and to keep proper books of accounts and noted that the company was directly 'owned, controlled and funded by Bray Town Council. The appeal noted that public money funded the company and built the facilities, which were on Council land. The Respondent accepted the appeal for consideration and invited submissions and the Appellant submitted that the information requested was information held by the Notice Party about Shoreline rather than information held by Shoreline itself. The Appellant further noted that the facility operated by Shoreline was built by the Notice Party at a cost of approximately €10.5m and that the completed pool was then transferred to Shoreline. The Appellant noted the 2010 accounts of Shoreline which stated that there was a loan due to the Council but that repayment would not be sought in the foreseeable future. The Appellant further noted that the Notice Party owned 100% of the share capital of Shoreline and that Shoreline was set up by the Notice Party to allow the Council to operate swimming pool and ancillary facility. Furthermore, the fact that three of the directors of Shoreline were employees of the Council and added it was implausible for the Council to research that it did not have records of Shoreline just because Shoreline had legal independence. By letter dated 28th February, 2013, the investigator on behalf of the Respondent advised that it had come to a preliminary view that the request for access would be refused and this letter noted that the companies were separate legal entities to those who owned and managed and that ownership of the company did not entail any legal assumption of control by the Council over the company.

Held by Justice Cross in light of the applicable legislation and leading authorities including Sheedy v. Information Commissioner [2005] IESC 35 that there was a presumption in favour of disclosure and that the default position was one of disclosure. He stated that such disclosure was necessary so that the public could access information in possession of public bodies. In finding invalid the submission of the appellant that the respondent did not show any awareness of the presumption in favour of disclosure in its decision, Justice Cross stated that on a number of occasions, the respondent had without specifying or restating the presumption of disclosure in her analysis of the provision of s. 27 in relation to public interest and otherwise. He determined that the respondent had recognised the public interest in ensuring the openness and accountability of public bodies. Acknowledging the respondents submission that the Act did not create an absolute right, Justice Cross accepted that proposition that whilst there was a presumption in favour of disclosure there was no absolute right to disclosure. In light of Deely v. Information Commissioner [2001] 3 I.R. 439, which stated that in an appeal such as this that the onus of proving that the decision of the Respondent was erroneous in law rested on the Appellant, Justice Cross accepted this law as being a proper description of his jurisdiction. In respects of the documents held by the Notice Party Justice Cross determined that the respondent has erred in relation to the release of the documents on the issue of confidentiality, he further accepted the arguments of the respondent that the respondent did not exclude the possibility that a private interest in making the request for information could be accompanied by a public interest in disclosure. It was further reasoned that what the Respondent held in its regard was insofar as there was a public interest in the release of commercially sensitive information regarding a limited company that was not subject to the FOI Act. Thus, Justice Cross was satisfied that that had been adequately met by the various requirements of company legislation, and he found no error in the reasoning of the Respondent in relation to the public interest test. Moving on the documents held by Shoreline and the question of whether the Notice Party controlled Shoreline, Justice Cross stated that the issue that the Appellant had to satisfy was whether the Respondent had...