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'I don't have to tell you': Public bodies may no longer have to justify FOI refusals, Supreme Court hears

An appeal against two rulings last year has been brought by the Information Commissioner.

Image: Graham Hughes/Photocall Ireland!

THE SUPREME COURT has heard that public bodies could no longer have to explain their reasons for refusing records under Freedom of Information (FOI) laws if it does not overturn two rulings against the Information Commissioner.

On the first day of an appeal against the rulings, counsel for the Information Commissioner claimed that public bodies “hold all the cards” when they decide whether members of the public should receive records under the FOI Act.

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. 

Today’s appeal was brought after the Court of Appeal and the High Court made separate findings against the Information Commissioner in March and April last year.

The cases were heard after the Minister for Communications and University College Cork (UCC) brought judicial reviews of decisions by the Commissioner, who carries out independent reviews of decisions taken by public bodies in relation to FOI requests.

During the course of such reviews, public bodies are required to justify the decision they make in relation to FOI requests to the Commissioner.

In doing so, they can refer to one or more exemptions outlined under the FOI Act, which provide varying reasons to prevent records from being disclosed.

In March last year, the Court of Appeal overturned a finding by the Commissioner – later upheld by the High Court – that details of a contract between the Minister for Communications and E-Nasc Éireann Teoranta (eNet) should be released.

The Commissioner previously found that journalist Gavin Sheridan was entitled to receive the records, which he had sought under the FOI Act, because the public interest would be better served by releasing them.

However, the Court of Appeal overturned a previous finding by the Commissioner that the records should be made available, because the court agreed with the Minister that they were commercially sensitive.

The following month, the High Court also overturned a decision by the Commissioner compelling UCC to release records which RTÉ had sought under FOI.

The broadcaster had sought details of a loan given to the university by the European Investment Bank, which UCC claimed it could not release, also for reasons of commercial sensitivity.

In that 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.

That presumption was previously the basis for all appeals by members of the public to the Commissioner. 

Mr Justice Simons’ ruling caused concern among politicians, legal experts and campaigners about its implications for the application of the Act, as it was felt that the onus was no longer on public bodies to prove why information should be refused.

‘I don’t have to tell you’

Speaking in the Supreme Court today, Nuala Butler SC for the Information Commissioner said that the purpose of the FOI Act was to create access to records held by public bodies to the greatest extent possible.

She said the two rulings last year had systemic implications for the function of the Commissioner, whose role was designed to be balanced towards those seeking access to records.

She described members of the public seeking records as “ignorant parties” because they generally do not know what is contained in those records, and said that public bodies “hold all the cards” when deciding whether to grant or refuse access to them.

Butler explained that FOI legislation was consequently drafted in such a way that required public bodies to explain their reasons for refusing the release of records.

“The system is clearly intended by the Oireachtas to have a head [of a public body who decides on whether to release records] justify their decision,” she told the court.

“That justification goes before the Commissioner. But if there is a proposition that bodies are not required to justify this, the Commissioner is left having to conduct a review without a statement as to their decision.”

She also rejected a suggestion from Mr Justice Donal O’Donnell that nothing would stop the Commissioner from asking a public body to justify their refusal of records during the course of an appeal.

She said: “But there would be nothing to stop the head saying ‘I don’t have to tell you’… the principle method through which the Act operates is that the head must justify the decision.

“The point of presumption is that the head is required [to justify their decision], not that they’re given an opportunity.”

She further argued that presumption was part of the process of every appeal to the Commissioner, as opposed to the outcome of the Commissioner’s decision.

Commercial sensitivity

Butler also contended that the exemptions outlined in the Act were not “self-executing”, and that human decisions are made when a release of information is refused.

She told the court that although some exemptions are discretionary, all are premised on a proactive action by the individual decision maker who decides to apply them.

“This is important because central to the Commissioner’s argument is that exemptions are not self-enacting,” she said.

“All we’re looking at where the burden lies, not how big the burden is.”

Arguing against the use of the exemption of commercial sensitivity in the eNet case, Butler said the company managed a state asset and that disclosing the records would not be fundamentally damaging to its business.

She pointed to Section 11 of the FOI Act as “particularly applicable” in the case, because it referred to the need for FOI bodies to achieve greater openness and promoted the principle of transparency in government and public affairs.

In relation to the UCC case, Butler also contended that “not all material is equally commercially sensitive” and described the section of the Act dealing with exemptions for this reason as “disjunctive”.

She added that UCC did not identify what information was likely to give rise to commercial harm to the EIB, and that the university did not engage with the Commissioner when asked.

“The only explanation UCC gave the Commissioner was a relatively brief, relatively vague argument,” she said. “The complaint was very limited.”

The hearing continues tomorrow.

Stephen McDermott will be in the Supreme Court on Wednesday to report on the second day of the Information Commissioner’s appeal. Follow him on Twitter for updates on the case at @Ste_McDermott.

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