THE HIGH COURT

[2015 N0. 394 
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014
BETWEEN I
THE MINISTER FOR COMMUNCIATIONS,

ENERGY AND NATURAL RESOURCES

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

GAVIN SHERIDAN

FIRST NOTICE PARTY

AND

EIREANN TEORANTA (TRADING AS 

SECOND NOTICE PARTY

JUDGMENT of Mr. Justice Noonan delivered on the 6th dav of April, 2017

1. This matter comes before the court by way of appeal on a point of law
pursuant to S. 24(1) of the Freedom of Information Act 2014 (?the 2014 Act?). The
appellant (?the Minister?) brings the appeal against a decision of the respondent (?the
Commissioner?) dated 30th November, 2015. The ?rst notice party (?Mn Sheridan?)
was the original requester of the information the subject matter of this appeal, which

information concerned the second notice party enet did not participate in

 

this appeal other than by way of submitting an af?davit which was ?led by the
Minister on his own behalf.

Background Facts

2. The State is the owner of an infrastructure of ?bre optic cables in towns and
cities throughout the country which are known as ?metropolitan area networks?
(MANs). The MANs enable telecoms operators who do not possess their own
infrastructure to utilise the MANS to provide services such as telephone and
broadband to their customers. Such operators access the MANs on commercial terms.
Following a tendering process instigated by the Minister, enet was awarded a
concession with the State to maintain, manage and operate the MANs. The terms of
this concession are embodied in a written agreement entered into in 2009 between the
Minister and enet. On foot of this agreement, enet operates as a wholesaler of access
to the MANs selling services to retail telecoms operators. The MANs constitute an
important State owned asset.

3. On 2? January, 2015, Mr. Sheridan made a Freedom of Information request to
the Minister for access to four categories of records. The fourth record is the
concession agreement. No issue arises any longer in relation to the ?rst three records
so this appeal is concerned solely with the concession agreement.

4. On the 14th January, 2015, the Minister wrote to enet to advise it of Mr.
Sheridan?s request. The letter noted that s. 38 of the 2014 Act required the Minister to
consult with enet as a third party to whom the record sought related. The Minister
said that the records were being considered in accordance with ss. 35 and 36
concerning con?dential information and commercially sensitive information
respectively and noted that both sections required the undertaking of a public interest

test to determine if the records should be released; The letter went on to say:

 

?My preliminary View in this matter is that the public interest would on
balance be better served by granting the requester the information rather than
refusing it unless there are objective reasons to the contrary.?
5. enet replied on 3rd February, 2015. It submitted that the records should not be
released on the grounds that they were commercially sensitive and the public interest
did not favour release. The letter made a legal submission in the context of previous
decisions of the Commissioner. However, the letter provided no speci?c information
as to how the concession agreement ought to be regarded as commercially sensitive.
It stated that release of the agreement might provide an incomplete picture of the
relationship between the Minister and enet.
6. The Minister communicated his decision to Mr. Sheridan by letter of 16th
February, 2015. The letter cited both ss. 35 and 36. It noted that a duty of con?dence
exists between the parties to the concession agreement being the Minister and enet.
Release of the agreement would be a breach of this duty of con?dence. The letter
makes no reference to the requirement to consider the public interest under s. 35(3) or
whether 3. 35(1) applied at all having regard to the terms of s. 35(2) to which I will
refer further.
7. Having cited 3. 36, the Minister?s letter went on to state:
?enet has an obligation to manage, moreover, maintain and operate the MANs
on behalf of the State. The release of the concession agreements and any
matters pertained to these agreements could have a negative impact on the
ability of enet to continue the business of managing the MANs on behalf of
the State in a competitive environment and could result in a material ?nancial

loss to the company.?

 

8.

sensitivity of the concession agreement in issue.

That appears to be the extent of the Minister?s consideration of the commercial

Of note, the Minister?s decision

makes no reference of any kind to the requirement to consider the public interest

under both ss. 35 and 36. This is in contrast to the Minister?s preliminary decision

that the public interest required the disclosure of the information. No reason is given

for departing from that preliminary View.

9.

Mr. Sheridan appealed this decision to the Commissioner. On 12th May, 2015,

the Commissioner wrote to the Minister asking for submissions in relation to the

matter. In the course of that letter, the Commissioner said:

?It is important to note that s. 22(12) of the Freedom of Information Act
places the onus on the public body of satisfying the Commissioner that its
decision to refuse to grant a request was justified. Therefore, failure to justify
a claim for exemption may lead to a decision by a Commissioner to release the

records at issue.?

The Minister replied on 26th May, 2015, and in the course of an email of that date

said:

?In effect, this will amount to penalising the company for transacting business
with the State. It could also act as a disincentive to any future potential
bidders for the MSC contracts, i.e. knowing that all of their commercial
dealing is liable to end up in the public domain.

The release of the contract details would also undermine the State?s ability

To negotiate similar types of contract in the future and could undermine the

State?s negotiation future tender process.?

 

10.

5

On 28th July, 2015, the Commissioner wrote by email to the Minister seeking

clari?cation of how the release of the records would harm enet?s commercial position.

The Minister replied on 30th July, 2015, saying:

11.

?If enet?s commercial details were to be published, it would place them at a
disadvantage with both their customers and competitors i.e. both would
know enet?s costs and prices. The disclosure of this information would
undermine enet?s business.?

On 24th August, 2015, enet made further submissions to the Commissioner

attaching the agreement and highlighting the areas that they Viewed as being the most

commercially sensitive and which they argued should be rejected.

The email

continued:

would reiterate that we would still see the entire contract as- commercially
sensitive and had previously understood that it would remain con?dential as
intended under the con?dentiality clause contained within the agreement. As
outlined previously, the disclosure of commercially sensitive information
could impact our business adversely from a number perspectives and could
result in ?nancial loss to the company.

enet operates in the wholesale market, which is very competitive and our
competitors are operators such as Eircom and BT offer similar services to enet
(over the networks that they own). Any commercially sensitive information
that is disclosed which pertains to enet?s business model could result in our
competitors being better positioned to compete against enet and could also
result in our customers requesting price reductions thereby adversely

impacting in its ability to earn a commercial return.?

 

12.

The Commissioner made his decision on 27th November, 2015, and it was

communicated to the Minister on 30?11 November, 2015.

The Commissioner?s Decision

13.

14.

In dealing with preliminary matters, the Commissioner said:

?Before I consider the exemptions claimed, I wish to make four general points.
First, 3. 22 (12) of the FOI Act provides that when I review a decision to
refuse a request, there is a presumption that the refusal is not justi?ed unless
the public body ?shows to the satisfaction of the Commissioner that the
decision was justi?ed?. Therefore, in this case, the onus is on the Department
to satisfy me that its decision is justified 

This statement is one to which the Minister has taken exception in this appeal

for reasons which I will explain further.

15.

In dealing with the scope of the review, the Commissioner noted that Mr.

Sheridan had agreed to exclude schedule 3 to the Commission agreement from the

review so that it did not arise for consideration.

16.

17.

Dealing with s. 36, the Commissioner said:

?Having considered these submissions and having examined the record at
issue, I am not satisfied that the ?rst limb of s. 36(1) applies. The parties
have not demonstrated to my satisfaction that there is a ?reasonable
expectation? of ?material 1035? accruing to the third party.?

In respect of the second limb of s. 36(1) the Commissioner found that it did

apply i.e. that enet?s competitive position could be prejudiced, and accordingly that it

was necessary to consider the public interest under s. 36 (3).

In this regard, the

Commissioner said:

 

?Having found that s. 36 applies, s. 36(3) of the FOI Act requires me to
consider whether, on balance, the public interest would be better served by
granting them by refusing the request. I take the approach that in considering
the public interest in cases of this kind, I must consider the interests of each
party. The FOI Act itself recognises the public interest in ensuring the
openness and accountability of public bodies as to how they conduct their
business. I take the view that there is a public interest in the proper
administration of public contracts and in ensuring that value for money is
obtained. I consider that openness about the expenditure of public funds is a
signi?cant aid in ensuring the effective oversight of public expenditure and
that the public obtains value for money, and in preventing fraud and
corruption and the waste or misuse of public funds. This public interest is not
limited to the expenditure of public funds; I also recognise that there is a
public interest in transparency and accountability in the use of public property
and public assets. I

Set against that, s. 36 itself reflects the public interest in protecting
commercially sensitive information. There is a legitimate public interest in
entities being able to conduct commercial transactions with public bodies
without suffering commercially as a result. As my predecessor observed in
cases 98114, 98312, 98164 and 98183 (Eircom Department of
Agriculture and Food Ora), the public interest in openness about the
expenditure of public funds is not absolute; for example where the effect of
disclosure would be to totally undermine the business of the company and
thereby deter public bodies from transacting business with the State.

The MANs are a valuable State asset. In my View, it is in the public interest

 

to disclose the terms and conditions under which enet has agreed to manage,
maintain and operate this valuable State asset.?
18. The Commissioner went on to refer to earlier decisions of his predecessors
including McKeever Rowan Solicitors and the Department of Finance (Case 99183)
and noted that in that case, the Commissioner had'stated:
?He also stated that the public body in that case ?could not reasonably be
expected to keep that information or any of the other contract terms
con?dential in the absence of exceptional circumstances.? 
The Commissioner continued:
adopt the views espoused in the cases referred to above. The parties have
not pointed to any exceptional circumstances that apply in this case such as to
override the need for transparency. In my view, enet was the successful
bidder in a tender process for the use of a State-owned asset which generates
Revenue and there should be transparency around this transaction.
In the ?rst place, I do not accept that the release of this information would
deter future potential bidders from seeking to manage, maintain and operate
this revenue-generating asset on behalf or the State. Indeed, as the former
Commissioner observed in Case 98049 cited above, there would appear to be a
contradiction between the arguments that on the one hand, competitors will
use the information in future tenders, and yet on the other hand, competitors
will be deterred from entering into future tenders.
Secondly, in any event, I do not accept that the information contained in the
records would automatically bene?t future tenderers. This contract relates to

one particular phase of the it does not follow that the State?s

 

19.

requirements for any future phase will be exactly the same. Moreover, I note
that the current prices in respect of part of the services are on enet?s website.
Thirdly, neither the Department nor enet has demonstrated to me that releasing
the contract would ?totally undermine? enet?s business (see Case No. 98114
above). Finally, I agree with the ?ndings of the former Commissioner in Case
No. 98114 that the possibility of information being misunderstood is not a
good reason to refuse access to records. It would be open to the Department
and/or enet to put further information in the public domain, if that were
necessary to clarify enet?s contractual relationship with the State or any other
aspects of enet?s operations.

Furthermore, I am mindful that s. 11(3) of the FOI Act requires public bodies
to have regard to the need to achieve greater openness and in their activities
and inform scrutiny, discussion, comment and review by the public of their
activities. I consider this to be relevant here in that it is a public interest which
equates with ?a true public interest recognised by means of a well known and
established policy, adopted by the Oireachtas, or by law? as referred to by
Macken J. in Rotunda Hospital v. the Information Commissioner [2011] IESC
26.

Having regard to the above, I ?nd that, on balance, the public interest would
be better served by the release of the fourth record.?

With regard to s. 35, which deals with con?dential information, the

Commissioner was of the View that s. 35(2) which disapplies the confidentiality

exemption in the case of agreements between public bodies and service providers,

was applicable in this case. However, he went on to consider that in any event, 8.

35(1) did not apply for the reasons he set out.

 

10

The 2014 Act

20. The following provisions of the 2014 Act are material to this appeal. Part 4 of

the Act comprises 33. 28 41 inclusive and is entitled ?exempt records?. S. 2 is the

interpretation section which de?nes inter alia, ?exempt records? as meaning:
a record in relation to which the grant of an FOI request would be refused
pursuant to Part 4 or by virtue of Part 5 

Section 11 is entitled ?access to records? and provides, insofar as relevant
here:

Subject to this Act, every person has a right to and shall, on request
therefor, be offered access to any record held by an FOI body and the right so
conferred is referred to in this Act as the right of 
(3) An FOI body, in performing any function under this Act, shall have regard
to? 
the need to achieve greater openness in the activities of FOI bodies and to
promote adherence by them to the principle of transparency in government
and public affairs,
the need to strengthen the accountability and improve the quality of
decision- making of FOI bodies, and
the need to inform scrutiny, discussion, comment and review by the public
of the activities of FOI bodies and facilitate more effective participation by the
public in consultations relating to the role, responsibilities and performance of
FOI 
(7) Nothing in this section shall be construed as applying the right of access to
an exempt record? 7

where the exemption is mandatory, or

 

21.

11

where the exemption operates by virtue of the exercise of a discretion that
requires the weighing of the public interest, if the factors in favour of refusal
outweigh those in favour of release.?

Section 22 provides for review by the Commissioner of decisions of Freedom

of Information bodies such as the Minister and at subs. (12) provides:

22.

In a review under this section??

a decision to refuse to grant an 01 request shall be presumed not to have
been justi?ed unless the head concerned shows to the satisfaction of the
Commissioner that the decision was justified.?

Section 35, entitled ?information obtained in confidence? replaces s. 26 of the

Freedom of Information Act 1997 and provides as follows:

?35(1) Subject to this section, a head shall refuse to grant an FOI request if?

the record concerned contains information given to an FOI body, in
con?dence and on the understanding that it would be treated by it as
con?dential (including such information as aforesaid that a person was
required by law, or could have been required by the body pursuant to
law, to give to the body) and, in the opinion of the head, its disclosure
would be likely to prejudice the giving to the body of further similar
information from the same person or other persons and it is of
importance to the body that such further similar information as
aforesaid should continue to be given to the body, or

disclosure of the information concerned would constitute a breach
of a duty of con?dence provided for by a provision of an agreement or

enactment (other than a provision speci?ed in column (3) in Part 1 or 2

 

23.

12

of Schedule 3 of an enactment speci?ed in that Schedule) or otherwise

by law.
(2) Subsection (1) shall not apply to a record which is prepared by a head or
any other person (being a director, or member of the staff of, an FOI body or a
service provider) in the course of the performance of his or her functions
unless disclosure of the information concerned would constitute a breach of a
duty of con?dence that is provided for by an agreement or statute or otherwise
by law and is owed to a person other than an FOI?body or head or a director, or
member of the staff of, an FOI body or of such a service provider.
(3) Subject to section 38 subsection shall not apply in relation to a
case in which, in the opinion of the head concerned, the public interest would,
on balance, be better served by granting than by refusing to grant the F01
request concerned. 

Section 36 is entitled ?commercially sensitive information? and provides as

follows:

36. (1) Subject to subsection (2), a headshall refuse to grant an FOI request

if the record concerned contains?u

financial, commercial, scienti?c or technical or other information
whose disclosure could reasonably be expected to result in a material
financial loss or gain to the person to whom the information relates, or
could prejudice the competitive position of that person in the conduct
of his or her profession or business or otherwise in his or her

occupation, or

 

13

(3) Subject to section 38, subsection (1) does not apply in relation to a case in
which, in the opinion of the head concerned, the public interest would, on
balance, be better served by granting than by refusing to grant the F01

24. Where the public interest override provision in ss. 35 or 36 apply, 3. 38
requires the head to notify the person to whom the requested information relates of the
request and allow that person to make submissions before decidingto grant a refusal
request.
The Arguments
25. Although a very large number of grounds were originally raised by the
Minister in his grounding af?davit, as the case proceeded, these essentially distilled
down to the following core propositions:
The Commissioner was in error in considering that the presumption
under 5. 22(12) applied to records which are exempt under the 2014 Act.
The sole basis for this contention is a passage from the judgment of Macken J.
in Rotunda Hospital v. Information Commissioner [2013] 1 IR. 1 to which I
will refer in more detail.
In applying the public interest tests under both 35. 35 and 36, the
Commissioner fell into error in applying a standard not provided for by the
express words of the Statute. Thus the application of an ?exceptional
circumstances? test was neither lawful nor appropriate. The fact that the
Commissioner followed earlier decisions of his office in that respect is
immaterial. In deciding that the 2014 Act requires transparency in relation to

State Bodies, the Commissioner effectively ignored the exemptions created by

 

14

Part 4 which prima facie exempts records from disclosure. This was to
reverse what the statute actually required. The Commissioner further fell into
error. in applying a standard that required the Minister to demonstrate that the
release of the contract would ?totally undermine? enet?s business. This was
not a test provided for in the Act and for the same reasons as applying an
?exceptional circumstances? test was ultra vires the Commissioner. It was
further submitted that the balancing test required to be performed by the
Commissioner was erroneously carried out. The Minister had applied the test
correctly and concluded that the public interest favoured non disclosure.
26. The Minister further submitted that the Commissioner was in error in
considering that s. 35 (2) applied to the facts of this case. The Minister submitted that
s. 35 (2) applies to a record prepared by the head (or other person acting as agent such
as a service provider) in the course of performance of his or her functions qua head.
In this instance, enet was such a third party, not a service provider performing the
functions of a head; and it did not negotiate an agreement on behalf of the head with
itself.
27. Both the Minister and Mr. Sheridan submitted that the Commissioner was
correct in concluding that s. 22 (12) applied to exempt information as it applied to
all other information. They contended that insofar as the views expressed by Macken
J. in Rotunda Hospital suggested to the contrary, those views where obiter, were
contradicted by other dicta which were not obiter and in any event were expressed
before the passage of the 2014 Act which, despite the expression of those views,
repeated verbatim the wording of the 1997 Act.
28. They submitted that s. 35 (2) was clear in its terms and applied in this case

with the effect that s. 35 (1) was not relevant. They contended that the Minister was

 

15

in any event precluded from relying on any argument at s. 22 (12) did not apply as
this argument had never been made before the Commissioner. In that regard, they
relied on the dicta of Fennelly J. in Rotunda Hospital and also the views of this court
expressed in McKillen v. The Information Commissioner [2016] IEHC 27.

29. They submitted that the standard of review argued for by the Minister was
akin to an appeal on the merits wherein the Minister argued that he got the balancing
test right and the Commissioner got it wrong. The correct test was whether or not
there was no evidence to support the Commissioner?s decision and the onus was on
the Minister to establish this.

30. They submitted that the ?exceptional circumstances? test was one that the
terms of the Act itself by de?nition required all information is prima facie
disclosable unless coming within an exception speci?ed by the Act. It was in any
event a test approved by the court in a number of authorities to which I shall refer.
Furthermore, the Commissioner was entitled to adopt a standard which he considered
appropriate in the context of disclosing information alleged to be commercially
sensitive. In adopting the criterion that there was no evidence that enet?s business
would be ?totally undermined?, this was a standard he was entitled to adopt within the
margin of discretion afforded him by the Act and it could not be disturbed unless it
was so irrational as to ?y in the face of fundamental reason and common sense.

31. On the issue of s. 35 (2), the Commissioner and Mr. Sheridan submitted that
this section is clear in its terms and applied to this case. Accordingly the Minister was
not entitled to rely on any con?dential information exemption provided for by the

terms of s. 35 (1).

 

16

Discussion
32. The standard of review in an appeal on a point of law from a decision of the
Commissioner has been considered in a number of cases. In Deely v. The Information
Commissioner [2001] 3 IR. 439, McKechnie J. said (at p. 452):
?There is no doubt but that when a court is considering only a point of law,
whether by way of a restricted appeal or via a case stated, the distinction in my
view being irrelevant, it is, in accordance with established principles, con?ned
as to its remit, in the manner following:-
it cannot set aside ?ndings of primary fact unless there is no
evidence to support such ?ndings;
it ought not to set aside inferences drawn from such facts unless
such inferences were ones which no reasonable decision making body
could draw;
(0) it can however, reverse such inferences, if the same were based on
the interpretation of documents and should do so if incorrect; and
?nally;
if the conclusion reached by such bodies shows that they have
taken an erroneous View of the law, then that also is a ground for
setting aside the resulting decision.?
Deely was an appeal on a point of law pursuant to s. 42 of the 1997 Act, the
predecessor of s. 24 of the 2014 Act.
33. Killilea v. the Information Commissioner [2003] 2 IR. 402 was another 3. 42
appeal in which Murphy J. said (at p. 426):
?If a decision of the respondent to discontinue a review, taken in the exercise

of the discretion vested in him by the Oireachtas by means of s. 34(9) of the

 

34.

17

Act is, properly speaking, within the scope of s. 42(1) of the Act, it is
submitted that the court ought only to upset the respondent's exercise of such
discretion if the same were found to have fallen foul of the judicial review
standard of reasonableness. In other words, it is submitted that the court ought
not to interfere with the respondent?s decision to discontinue his review of the
decision made by the Department in this case unless it considers his decision
to fly in the face of fundamental reason or common sense or to be so irrational
or unreasonable that no reasonable Commissioner could have come to it.?

Similar sentiments were expressed by Kearns J. in the Supreme Court in

Sheedy v. Information Commissioner [2005] 2 LR. 272, where he said (at p. 299):

35.

?Nor do I believe that any exhaustive analysis conducted by reference to
detailed evidence was necessary before the respondent could decide to apply
the public interestprovision of s. 21(2) of the Act of 1997 to direct release of
the reports. Once there was some evidence before him as to the circumstances
in which these reports are compiled, as undoubtedly was the case here, the
well established principles-of O?Kee?e v. An Bord Pleanoila [1993] 1 IR. 39
make it clear that his decision is not to be interfered with. This assessment,
which involved a balancing exercise between various competing interests, was
one uniquely within his particular remit.?

In a similar appeal in Gannon v. the Information Commissioner [2006] 1 IR.

270 Quirke .1. applied the Deely and 0 ?Keeffe standard to an appeal on a point of law.

Again in Westwood Club v. the Information Commissioner [2014] IEHC 375, Cross .1.

also followed Deely and determined that the onus of proof in an appeal on a point of

law rests on the appellant who has to satisfy the O?Keeffe test.

 

18

36. In reviewing these authorities in MoKz'llen v. The Information Commissioner
[2016] IEHC 27, I offered the View (at p. 21):
?It seems to me therefore that at this juncture, it is beyond argument that the
standard to be met by an appellant in a s. 42 appeal is virtually
indistinguishable from that applied by the court in judicial review matters.
Accordingly, a decision of the respondent will not be interfered with unless it
is either based on no evidence or ?ies in the face of fundamental reason and
common sense. It is thus immaterial if the court would have arrived at a
different decision based on the same evidence. Inferences will not be set aside
unless they are such that no reasonable decision maker could have drawn
them.?
37. In Fitzgibbon v. The Law Society of Ireland [2015] 1 IR. 516, Clarke J.,
speaking obiter in the Supreme Court, said that appeals on points of law should be
assumed to permit some greater degree of review than might apply in judicial review.
In that context he suggested that errors of law which might amount to errors within
jurisdiction might not be amenable to judicial review but could form the subject
matter of an appeal on a point of law.
38. The Minister?s argument in relation to s. 22 (12) rests almost entirely on
the following passage from the judgment of Macken J. in Rotunda Hospital which
considered the latter section?s predecessor under the 1997 Act, 3. 34 (12) At page
78 of the. judgment, Macken J. said:
separate argument of a more general nature is made by the respondent that
she was entitled, in considering the application of s. 26(3), to have regard to

the provisions of s. 34(12)(b) of the Act. It provides:-

 

19

decision to refuse to grant a request under section 7 shall be

presumed not to have been justi?ed unless the head concerned shows

to the satisfaction of the Commissioner that the decision was justified.?
This is a very clear statement which, on its face, appears to apply to all
decisions. I have no dif?culty in its application to all circumstances covered
by the right of access in 5. I have a signi?cant dif?culty in its application
to requests made in respect of information exempt from disclosure under Part
of the Act, which by statute mandates a refusal, and to which no right of
access exists. It is dif?cult to see how it would apply to the provisions of ss.
19 to 32, other than the head in question meeting the terms of the various
sections. Even then it is dif?cult to see how a head goes about ?justifying? a
decision in the case of, say, 5. which exempts from disclosure, inter
alia a record which has been or is proposed to be submitted to the
Government for its consideration, which Itake as the ?rst example of the type
of record covered. Either 5. 34(12) does not apply to such exempt records, or it
is suf?ciently satis?ed by proof that the record in question is, in fact, one
submitted to or is proposed to be submitted to the Government. Such proof
would likely suf?ce if it is made by an appropriate person, and could not be
rejected by the respondent, save in the most exceptional circumstances, of
which I can imagine none. If therefore 3. 34(12) of the Act does apply, and I
do not accept the respondent has established that it does, to Part records,
then compliance with the terms of s. 26(1)(a) also appears suf?cient to justify
the decision made. In the present case I am satis?ed that that legal requirement
was complied with by the submissions made on the part of the appellant

responding to the criteria mentioned in the section itself, and from the terms of

 

39.

20

its original refusal. As I have mentioned previously in this judgment, neither
the respondent nor the High Court Judge suggested that the opinion criteria
mentioned in s. 26(l)(a) were not met.?

The Minister argues that this passage establishes the proposition that s. 22 (12)

does not apply to exempt records under Part 4 of 2014 Act. I disagree. The first

point to be noted about the above passage is that it is, as Macken J. herself remarked,

entirely obiter. It is also appears to be somewhat at odds with the views of Fennelly J.

expressed in the same case. At page 29 of the report, he considers the issue of

whether or not the High Court should have entertained a point not raised before the

Commissioner. In dealing with this, he said (at page 30):

40.

It is important to bear in mind that the appeal to the High Court is taken
from a review by the respondent pursuant'to s. 34 of the Act. [He then recites
the Section].

[88] The respondent relies, in particular, on para. which places a burden
on the body refusing a request to justify its decision. I agree that it is, thereby
necessarily implied that the body will raise before the respondent any point of
law which supports its position. Although s. 42(1) does not expressly say so, I
think it is an integral part of any appeal process, other than possibly an appeal
by complete re?hearing, that any point of law advanced on appeal shall have
been advanced, argued and determined at first instance.?

Accordingly, Fennelly J. expressly accepted that the presumption contained in

s. 34 (12) of the 1997 Act applied to the facts of that case which concerned exempt

records.

41.

In Weslwood Club, which was concerned with commercially sensitive and

thus exempt records, Cross J. accepted the proposition that the presumption under s.

 

21

34 (12) of the 1997 Act applied to such records. (see paras. 100 to 107 of the
judgment). That of course post dated the Rotunda Hospital case. It is also of
signi?cance that the 2014 Act was enacted subsequent to the decision of the Supreme
Court in Rotunda Hospital. DeSpite the comments of Macken J. to which I have
referred, the Oireachtas re?enacted s. 22 (12) in identical terms to the earlier 3. 34
12) It seems to me that had the Oireachtas wished to create an express exception
from the presumption for exempt records as that expression is de?ned in s. 2 of the
2014 Act, it would have been a simple matter to do so. It could have prefaced the
subsection by words such as ?save in the case of exempt records?, or words to like
effect to make clear that the presumption does not apply to, inter alia, Part 4 records.
The Oireachtas chose not to do so and it seems to me that the meaning and intent of
the section is absolutely clear. It applies to all information in the possession of public
and other bodies subject to the 2014 Act. I am therefore of the opinion that in
applying the presumption in this case, there was no error on the part of the
Commissioner.
42. However, even if I were to be wrong in expressing that View, I am satis?ed
that this is not a point that the Minister is entitled to raise in this appeal as it was not
raised before the Commissioner. In the letter of 12th May, 2015, referred to above, the
Commissioner made it clear that he was of the View that s. 22 12) applied and
thus he was approaching the matter in the light of the presumption provided for in that
subsection. The Minister raised no objection. In Rotunda Hospital, Fennelly J. said
(at p. 29):

I do not accept that the new point should have been considered either

because many other cases raised the same issue or because it was a matter of

importance. The Act is clear: an appeal to the High Court lies only in respect

 

22

of a point of law. It must be a point of law involved in the decision under
appeal. Thus, I do not think the High Court should have entertained the point.?
43. In MeKillen I referred to this and the earlier authorities of South Western Area
Health Board v. the Information Commissioner [2005] 2 LR. 547 and Minister for
Education v. The Information Commissioner [2009] 1 IR. 588 as well as the above
cited dicta-of Fennelly J. and concluded (at p. 23):
s. 42 appeal is not a de novo hearing where the appellant is at large to
advance new arguments or evidence not put before the respondent. It is an
appeal on a point of law which was considered and dealt with by the
respondent. It is not here suggested that there are new arguments or evidence
not available to the appellant at the time the respondent decided the matter or
that the appellant was disadvantaged in any way, for example, by the lack of
legal advice. As J. remarked, it would be entirely unsatisfactory if
appeals on pure points of law could be run on the basis of matters never raised
before, let alone considered and decided by, the respondent. That would
transform the appeal into something quite different from that envisaged by the
Act.?
44. Turning now to s. 35 of the Act, the s. 35 (1) con?dentiality exemption only
arises if it is not disapplied by s. 35 (2). It seemsto me that s. 35 (2) is unambiguous.
It was not suggested on behalf of the Minister that enet is other than a service provider
within the meaning of the subsection. In general, a Freedom of Information body and
a party providing services to such body cannot rely on a confidentiality clause as
between themselves to prevent access to information held by the Freedom of
Information body. There are obviously sound policy reasons why this should be so,

consistent with the object of the legislation. The only exception that arises is in cases

 

23

where the duty of con?dence is owed to a third party other than the Freedom of

Information body or the service provider.

45.

46.

The long title to the Act makes clear its objectives which include:

?to enable members of the public to obtain access, to the greatest extent
possible consistent with the public interest and the right to privacy, to .
information in the possession of public bodies 

The Act?s ?mission statement? is further ampli?ed by the terms of s. 11 (3)

above. In dealing with the 2014 Act?s predecessor, Fennelly J. made the following

observations in Sheedy v. the Information Commissioner [2005] 2 IR. 272, at page

275:

47.

?The passing of the Freedom of Information Act 1997 constituted a legislative
development of major importance. By it, the Oireachtas took a considered and
deliberate step which dramatically alters the administrative assumptions and
culture of centuries. It replaces the presumption of secrecy with one of
openness. It is designed to open up the workings of government and
administration to scrutiny. It is not designed simply to satisfy the appetite of
the media for stories. It is for the bene?t of every citizen. It lets light in to the
of?ces and ?ling cabinets of our rulers. The principle of free access to
publicly held information is part of a world-wide trend. The general
assumption is that it originates in the Scandinavian countries. The Treaty of
Amsterdam adopted a new Article 255 of the EC Treaty providing that every
citizen of the European Union should have access to the documents of the
European Parliament, Council and Commission.?

It would be somewhat surprising if the laudable objectives identi?ed by the

Act itself could be defeated by the simple expedient of inserting con?dentiality

 

24

clauses into contracts between public bodies and those who provide services to them
for reward. The interpretation contended for by the Minister is in my view somewhat
tortuous and contrary to the plain meaning of the words actually used.
48. I am therefore satis?ed that s. 35 (2) applies in this instance and accordingly, a
consideration immaterial.
49. With regard to the s. 36 issue, it is common case as between the parties that
the information in question is commercially sensitive and that s. 36 (1) therefore
applies. In that event, it was necessary for the Commissioner to consider whether the
public interest would on balance be better served by granting them, by refusing the
Freedom of Information request under s. 36 (3). In respect of this, the Minister
criticises the Commissioner for considering that exceptional circumstances needed to
be shown by the Minister to justify the refusal. The provisions of the Act to which I
have referred make clear that all information is diselosable subject to exceptions. By
de?nition therefore, exceptional circumstances must exist to justify the refusal. In
this case, the onus of justi?cation rested upon the Minister having regard to the
provisions of s. 22 (12) This is also consistent with the approach of the courts. In
Minister for Education v. The Information Commissioner [2009] 1 IR. 588,
McGovern I. noted (at p. 594):
?The Act provides that it was the intention of the Oireachtas that it is only in
exceptional caSCs that members of the public should be deprived of access to
information in the possession of public bodies. It is clear that the legislation
operates on the basis that a decision to. refuse to grant a request is to be
presumed by the Commissioner not to have been justified.?
50. Similar views were expressed by O?Donovan J. in Minister for Agriculture 

Food v. the Information Commissioner [2000] 1 LR. 309 at p. 319 where he said:

 

51.

25

in the light of its preamble, it seems to me that there can be no doubt but
that it was the intention of the legislature, when enacting the provisions of the
Freedom of Information Act, 1997, that it was only in exceptional cases that
members of the public at large should be deprived of access to information in
the possession of public bodies and this intention is exempli?ed by the
provision of s. 34(12)(b) of the Act which provides that a decision to refuse to
grant access to information sought shall be presumed not to have been justi?ed
until the contrary is shown.?

To my mind therefore there is nothing novel or innovative and less still

erroneous in the Commissioner?s determination that the onus was on the Minister to

demonstrate exceptional circumstances to justify the refusal in this case.

52.

It will be recalled in the instant case that the preliminary view expressed by

the Minister was that the public interest favoured disclosure of the concession

agreement. However, he came to a different conclusion after consultation with enet

despite the fact that there appeared to be little of substance in enets?s submission

regarding what the actual commercial sensitivity alleged was. In this respect, the

Commissioner in his decision noted:

?Furthermore, neither the Department nor enet identi?ed for this of?ce
particularly sensitive information within the contract, the release of which
would disclose (for example) enet?s internal business methodology. In the
High Court case of Wesrwood Club v. The Information Commissioner [2014]
IEHC 375, Cross J. held that a public body must do more than repeat the
requirements of the exemption. It must engage with the question of why the
particular documents, if disclosed, could prejudice the position of the third

party.?

 

26

53. This appears to me to be an eminently reasonable conclusion on the part of the
Commissioner having regard to the effect of the presumption against refusal and it is
difficult to see how it could ever be said that this was somehow irrational or contrary
to fundamental reason and common sense.

54. It is clear from the Commissioner?s decision that, unlike the Minister, he
explicitly engaged with the arguments advanced in support of non disclosure and
discounted them in turn. He did not accept the argument that the release of the
information would deter future bidders or that it would automatically bene?t future
tenderers. Following earlier decisions of the Commissioner, he concluded that neither
the Minister nor enet had demonstrated that the release of the contract would totally
undermine enet?s business. Of course this conclusion has to be viewed in the light of
the submission made by the Minister on 30th July, 2015, to the Commissioner in
which the Minister said:

?the disclosure of this information would undermine E-Net?s business.?

55. This was but one factor in the overall conclusion reached by the
Commissioner and in the context of this particular case, I do not think it could be said
that this was an irrational consideration or one that was not within the
Commissioner?s discretion to apply in reaching a determination of what was, or was
not, in the public interest. It was no more than part of the balancing exercise
undertaken by the Commissioner in relation to his assessment of the competing
interests that had to be weighed in that balance, regard being had at all times to the
overarching presumption against refusal and the objectives of the Act. As Kearns J.
noted in Sheedy that balancing exercise was one uniquely Within the Commissioner?s

remit. It is not for the court to revisit the correct balance.

 

27

Conclusion

56. At the end of the day, it seems to me dif?cult to resist the conclusion that the
Minister?s case comes down to the contention that he got the balance right and the
Commissioner got it wrong. For the reasons explained, that is not something with
which the court can engage in an appeal on a point of law.

57. Accordingly, I must dismiss this appeal.