THE HIGH COURT
Record No.
IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS, 2014

E MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL
RESOURCES
Appellant
AND
THE INFORMATION COMMISSIONER
Respondent
AND
GAVIN SHERIDAN
First Notice Party
AND
e-nasc Eireann Teoranta (trading as enet)
Second Notice Party
AFFIDAVIT OF BRAONAN GARDINER
I, Braonan Gardiner, aged 18 years and upwards, of the e-nasc Eireann
Teoranta at Hamflton House, National Technological Parl^, Piassey, Limerick
mal<e Oath and say as follows:1.

1 am a Finance Director of the Second Notice Party and I mal<e this
Affidavit for and on behalf of the Appellant from facts within my own
knowledge save where otherwise appearing and where so
appearing t believe the same to be true.

2.

I beg to refer to the Pleadings and proceedings had herein when
produced.

3.

The proceedings concern, inter alia, the appropriate treatment of
enet's confidential information fomiing part of what is known as
Record 3 and Record 4. As accepted by the Respondent both
documents contain confidential information and I am informed the

3^

/yen

 appeal concerns the statutory tests to be applied to the release of
confidential material. As that has been addressed by the Appellant
in this appeal, I do not propose to duplicate the points made.
4.

I swear this affidavit for the purpose of setting out eNet's dealings
with the Infomiation Commissioner and to address the point made
at paragraph 25(vi) of Ms Rossi's affidavit of the 23'^ of December
2015.1 beg to refer to all the correspondence passing between eNet
and the Respondent upon which bundled together and marked with
the letters BG 1 , I have signed my name prior to the swearing
hereof.

5.

On the 3"^ of February 2016 enet made a submission to the
Appellant herein concerning the confidential nature of the Record 3
and 4. The Appellant is familiar with the Concession agreement being a party to it - and are familiar with the operation of the MANs.
The Appellant owns and developed the MANs as part of the State's
broadband strategy for njral areas and appointed enet to operate
the MANs following two competitive tenders. The Appellant has a
good understanding of the MANs, including the operation of same,
the tendering for provision of the services and the previous
competitions, and the telecommunications'market generally. That
common understanding was reflected in the submission by enet to
the Appellant of the 3"* of Febmary 2015.

6,

On the 27* of March 2015 the Respondent wrote to eNet and
requested submissions by the 14^*^ of April 2015 on the appeal of
Mr. Sheridan. On the 14**^ of April 2015, enet wrote to the
Respondent opposing disclosure and stated that enef s view was
the material was commercially sensitive and disclosed both
operational and commercial arrangements which were awarded
after an invitation to negotiate. Enet attached its ^initial response to
DCENR with the reasons therein.

7.

A number of months later, on the 13**^ of August 2015, enet was
contacted by email by an investigator, Ms Kenny, of the office of the
Respondent seeking to discuss a number of queries, at a time when
I was on annual leave. We did speak on my return on the 18* of
August. Ms Kenny inquired about a number of things with respect
to enets role with the MANs and sought a few general clarifications.

8,

By email of Wednesday, 19* of August 2015 enet were given until
"before" Monday, 24* of August 2015 to provide any further points
by email including identifying which points of the concession
agreement it considered to be commercially sensitive.

9,

By e-mail of Friday, 2V^ of August 2015, enet requested an
extension of time for time to review the concession agreement and
the request noted enet's concern regarding the release of
commercially sensitive infonnation.

 10.

I also asked the Respondent to explain the process and whether
there would be 'further interaction/feedback from enet to allow us to
review the basis of the decision', and I inquired about the
mechanism for an appeal. I also inquired about the confidentiality
clause in the concession agreement and whether in the event that
enet agreed to release parts of the contract, would the Respondent
confirm the position with the contracting authority or should enet
liaise with iL

11.

I was surprised to receive a call on Monday, 24* of August 2015
refusing the extension of time as we did not feel our request for an
extension was unreasonable.

12.

I informed Ms Kenny that I did not believe that we had been
afforded much time to reply. Ms Kenny explained that the
Respondent's perspective was that enet had been provided with an
opportunity to make written submissions and an opportunity to
discuss follow-up queries by telephone. She did not intend to
engage in prolonged negotiations regarding the confidentiality of the
concession agreement

13.

At no time prior to this was that position explained to me. I indicated
that I understood that there would be further interaction with the
Respondent on the decision and that there was not as much
interaction as I would have expected. 1 had assumed that the
Respondent would contact enet with a preliminary dedsion, in order
to obtain enet's input on a draft decision, as I had understood that
this was the practice in the past. It was explained to me that was no
longer the practice of the Respondent and the practice was now to
provide an opportunity to make submissions and to obtain all
relevant information before issuing afinaldecision.

14.

I was concerned that enet's views would be ignored and
emphasised that to Ms Kenny who understood clearly that enet
wished for further time to make submissions (beyond the two full
woridng days provided).

15.

The conversation was followed-up by email of the same date which
stated that: '[t]o avoid the process becoming unnecessarily
protracted, I wHI not be affording extension of time for further
submissions*.

16.

I did endeavour to submit a redacted concession agreement in the
short time pemiitted. But, I do believe that the Respondent should
have explained the procedure at the outset, should have provided a
more reasonable time period to respond than Monday, 24* of
August and that the Respondent might have reasonably acceded to
a short extension of time. That is particularly so given that the
decision was not given until the 30* of November 2015 and the

 procedure being adopted not made known until the extension of
time was refused. In addition, we had no correspondence from the
Respondent between their initial request on 27 March 2015 up to
the email on 13 August 2015.
17.

0

The Respondent was under no doubt that enet wished to be heard
further on the decision following the information queries of the
Respondent.

Sworn this the [ ' ] day of [S
20fg by the said JAGENT"^I^CBAgE
ENT*==PLSA§
for^AM^
INSERT] ^ ( ^ e - ^ / v
jL<^ct'-WX^
O C ^ ^ ^
at[w^o<^^^'WtheCityof ^ . . w p — ^ /
p<:\ v^..*^-^^^ DubHn before me a Commissioner
'
For Oaths/Practising Solicitor and
I know the Deponent

DAVSD J. SWEENEY
SOLICITOR
COMMISSIONER FOR OATHS
67 O'Connel! Street, Limerick.

 THE HIGH COURT
Record No. 2015/394MCA
[N THE [MATTER OF THE FREEDOM OF INFORMATION ACTS, 2014
Between :THE MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL
RESOURCES
Appellant
AND

THE INFORMATION COMMISSIONER
Respondent
AND
GAVIN SHERIDAN
First Notice Party
AND
E-NASC EIREANN TEORANTA (trading as enet)
Second Notice Party

AFFIDAVIT Ol

Eileen Creedon
Chief State Solicitor,
Solicitor for the Appellant
Osmond House,
Little Ship Street,
Dublin 8