THE SUPREME COURT has told the Information Commissioner to re-examine two cases which saw journalists unable to access files because State bodies claimed they were commercially sensitive.
The country’s highest court made the order in separate rulings in cases involving University College Cork (UCC) and the Minister for Communications Energy and Natural Resources this morning.
The landmark judgements have implications for the entire FOI system, re-affirming key aspects of the transparency legislation which threatened to be undermined by two previous judgements last year.
In a ruling involving the Minister, Ms Justice Marie Baker today found that there should be a presumption that records sought under FOI should be disclosed, unless a public body can sufficiently justify why this should not be the case.
That judgement came following an attempt by the journalist Gavin Sheridan to access a copy of a contract issued by the Minister for the management and operation of fibre optic networks across Ireland.
And in a related ruling in the case involving UCC, the same judge found that the High Court was incorrect in its ruling that the university didn’t have to fully justify its reasons for not releasing records to RTÉ because they were commercially sensitive.
That judgement came about after UCC refused an FOI request by RTÉ for access to details of a loan provided to it by the European Investment Bank.
Both rulings relate to an appeal brought by the Commissioner over findings made against him relating to his application of the FOI Act in the High Court and the Court of Appeal in 2019.
Sinn Féin TD Pearse Doherty said last year’s rulings “drove a horse and carriage through the Act” and its core principles, and welcomed today’s findings by the Supreme Court.
“This is a huge victory for those who support the concept of Freedom of Information and it now rectifies a wrong in relation to that,” he told TheJournal.ie.
“I still believe there are areas where the Freedom of Information Act needs to be significantly strengthened, but this is at least one issue that no longer jeopardises the entire premise on which the Act was based.”
Legislative choice
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 Commissioner carries out independent reviews of decisions made by public bodies in relation to FOI requests, including when individuals are unhappy about a decision and the way in which exemptions within the Act are used to refuse them access to records.
The High Court, citing a previous ruling by the Court of Appeal, ruled that the Commissioner was wrong to take a “presumption in favour of disclosure” and to require a justification to refuse records during one such review.
During a two-day hearing in the Supreme Court in January, counsel for the Commissioner warned that the two rulings had systemic implications for the function of the Commissioner, whose role was designed to be balanced.
In his annual report for 2019 published in June, the Commissioner himself said the rulings had impacted his office’s work and the application of the Act by public bodies.
Ruling today, Ms Justice Marie Baker found that the Commissioner must be satisfied in each review he carries out that a public body has justified its reason for refusing records.
“The Oireachtas chose to place an onus to justify a decision to refuse [within the Act],” the judge said.
“The consequence of this legislative choice is that a decision to refuse access [to records] must be made for justifying reasons.”
She explained that the presumption to disclose records was important to the entire FOI process, because it allows a public body’s decision to be thoroughly interrogated by providing a basis on which its decision has to be justified.
The judge noted that all refusals of access to records must therefore be “fully reasoned and sufficiently coherent, fact-specific, and logically connected” to the records requested.
In the same ruling, Ms Justice Baker also asked how, if the presumption was not in favour of disclosure, how a person requesting access to records could prove that they should be released.
“How… is a requester to demonstrate that the documents should be released in the public interest when he or she does not know of the content,” the judge said.
She referenced the second case involving UCC, in which a judge observed that some records held by the university were “self-evidently” commercially sensitive and should therefore not be released.
However, Ms Justice Baker said that, under the terms of the Act, no information can be said to be self-evidently exempt from disclosure.
Second ruling
In her second ruling involving UCC, she Ms Justice Baker said the judge in that trial was bound by the decision of the Court of Appeal involving the Minister for Communications, namely that there was no presumption favouring the release of records.
Although the judge said that was found to be an error based on her finding in the first case involving the Minister, she noted that the original judgement raised further questions.
Ms Justice Baker found that the trial judge in the case had also erred by allowing UCC to rely on points which it had raised during the initial appeal with the Commissioner.
And she noted that there were errors in how the judge interpreted the FOI exemption of commercial sensitivity, which was central to the finding against the Commissioner.
“I am not satisfied that it is sufficient for an FOI body to identify the records and merely assert that they could prejudice the competitive position of a person,” she explained.
“An FOI body must also have a reasonable basis for that position. A bare assertion will
never do.”
In both rulings, the judge found that the Information Commissioner should re-assess the appeals brought by RTÉ and Gavin Sheridan in their respective attempts to access records.
Today’s findings were welcomed by Sheridan, the Irish Council for Civil Liberties (ICCL), both of whom had expressed concerns about future access to records following last year’s rulings.
“The right to information is fundamental to ensure transparency of governance, democratic engagement and state responsibility,” Doireann Ansbro, ICCL’s senior research and policy officer told TheJournal.ie.
“This is a ruling of significant importance and will contribute to empowering individuals across Ireland to hold their representatives and institutions accountable.”
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