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'Not in the public interest': Supreme Court hears FOI law could 'scare' firms from working with State in future

The claim was made during appeal against two rulings last year brought by the Information Commissioner.

Image: Sam Boal/

PRIVATE COMPANIES COULD be “scared” from dealing with State bodies in future if Ireland’s Freedom of Information (FOI) laws continue to presume that records should automatically be disclosed unless proven otherwise, the Supreme Court has heard.

On the second day of an appeal of two rulings against the Information Commissioner last year, counsel for the Minister for Communications argued that there is a “mismatch in standards” in the section of the FOI Act that deals with commercial sensitivity.

The Act was introduced by the government in 1997 to give citizens a legal right to access information held by public bodies about their functions, as well as information held about citizens themselves. 

The appeal was brought after the Court of Appeal and the High Court made separate findings against the Information Commissioner, who carries out independent reviews of decisions taken by public bodies in relation to FOI requests.

In March last year, the Court of Appeal overturned a finding by the Commissioner that details of a contract between the Minister and E-Nasc Éireann Teoranta (eNet) should be released because the public interest outweighed the company’s commercial interests.

The following month, the High Court also overturned a decision by the Commissioner compelling UCC to release records which RTÉ had sought, which the university had also claimed it could not release for reasons of commercial sensitivity.

In the latter ruling, Mr Justice Garrett Simons found that the Commissioner was wrong to take a “presumption in favour of disclosure” as the starting point of RTÉ’s appeal, leading to concerns among campaigners that this would “dilute” the FOI Act.

The first day of the appeal yesterday heard from counsel for the Commissioner that eNet managed a state asset and that the Minister had not shown how disclosing the records would be fundamentally damaging to the company’s business.

But making submissions today, Conor Power SC for the Minister said that the Commissioner had applied “far too high a standard” when he asked for evidence that the company’s private interests outweighed the public’s in an appeal brought by journalist Gavin Sheridan, who originally applied for access to the records.

“The manner in which the public interest test has been articulated [in legislation] is to look for exceptional circumstances, meaning that a public body is totally undermined…” he said.

“But it cannot be in the public interest for public bodies to scare off third parties [private companies] for interacting with them.”

He also argued that there was a “mismatch in standards” in two subsections of the Act dealing with commercial sensitivity.

One section he referred to outlines reasons for refusing access to records where such sensitivity is established; the other says that this subsection does not apply if the public interest is better served, on balance, by the release of records.

No explanation required

However, Power was later questioned by the judges when he suggested that the decision to refuse access to records affecting third parties under the Act did not have to be justified by a public body.

Nuala Butler SC for the Commissioner had argued yesterday that public bodies may not have to explain their reasons for refusing records under FOI if the court did not overturn the two rulings being appealed.

But Power argued today that a public body’s justification for refusing to release records did not apply, because the Commissioner favoured the right of access during the appeal process regardless.

“The Commissioner is taking the position that presumption [of release] applies to every stage of the process,” he said.

But this interpretation of the FOI Act was extensively interrogated by the judges. Ms Justice Iseult O’Malley said that under the legislation, the use of exemptions preventing disclosure had to be explained to the Commissioner during an appeal.

“You make the argument that something is exempt, and that when there is no right of access, you don’t have to justify it,” she said.

“This is a circular argument which the Commissioner is trying to break by asking you to explain what you mean [when a body refuses to release records].”

The judge also said that if the non-disclosure of records did not have to be justified, the Commissioner would find it difficult getting a body to move from their position, because he would not know whether the body had correctly applied exemptions under the Act.

In response, Power said that the remedy to this would be to have a statutorily independent office, which was already legislated for under the Act.

A ruling in the case is expected in coming months.

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