THE HIGH COURT RECORD NO: 2015/ 394MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 BE 1 THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES APPELLANT AND THE INFORMATION COMMISSIONER RESPONDENT ?enet,,) NOTICE PARTIES LEGAL SUBMISSIONS OF THE RESPONDENT 9 February 2017 Word Count: 9967 SHORT INTRODUCTION AND CONTEXT I. On 2 January 2015 the First Notice Party Sheridan?) made a request to the Appellant (?the Minister?) pursuant to the Freedom of Information Act, 2014 (?the (?the Request?). Whereas four categories of records were sought the present litigation only concerns the fourth category.I As sought To this end these submissions are drafted with a View to the actual dispute in Court. Therefore, at times. complete descriptive accuracy is sacrificed to focus on the Commissioner?s Decision with regard to the Concession Agreement. Clearly. the Commissioner reached determinations on other matters which simply do not trouble the Court and with regard to space constraints, the focus herein is on the actual matters before the Court. this referred to? ?[aJny contracts from 2009 between the Department and eNet and in relation to the provision of broadband services via Metropolitan Area Networks.? As matters have progressed, this has concretised into a focus on one document titled ll Concession Agreement dated July 2009? (?The Concession Agreement?). ls.) To understand the context, the following extracts from the Commissioner?s Decision of 30 November 2015 are helpful:- ?By way of background, the State owns an infrastructUre of fibre optic cables in towns and cities which are known as ?Metropolitan Area Networks" (MANs). The MANs enable telecoms operators to provide services such as telephone and broadband to their customers." 3. The involvement ofeNet arises because, as the Commissioner put it? ?Following a tendering process, enet was awarded a concession agreement with the State to maintain, manage and operate the MANs. This agreement is set forth in the fourth record. Enet effectively operates as a wholesaler of access to the MANs selling various services to retail telecoms operators.? 4. The MANs are an important State constructed and State owned asset which, in essence, constitute underlying infrastructure enabling the provision of telephone and broadband services by other parties. 5. The Minister refused access to the Concession Agreement. Ultimately, the Commissioner disagreed with this and ordered the Minister to release the entire Concession Agreement with no redactions.3 The Minister brings this appeal against that determination. See the original request at FRZrecorded at page .3 of the Minister?s Mr. Sherldan agreed to exclude Schedule 3 of the Concession Agreement from his request. Thus all references in the Comn'iissioner's Decision, and in THE ISSUES BEFORE THE COMMISSIONER 6. Before the Commissioner, the Minister and eNet relied on 55.35 and 36 of the FOIA. 8.35 provides for an exemption from disclosure of information which could be classed as confidential (within the meaning of that section). It does not apply, however, (per 535(2)) where the record is prepared by an FOI body or service provider and the only asserted duty of confidence is alleged to be owed (as here) between an FOI body (such as the Minister) and a service provider eNet). 7. Section 36 provides exemption from release in the cases of where the commercially sensitive nature of the document (if released) would result in certain specified types of harm. 8. Section 35(l)(a) and 536(1), however, are subject to an overarching and important qualification that access should be permitted where, on balance, the public interest favours this. 9. In his Decision, the Commissioner determined that 5.35 was not applicable by reference to 535(2) but also went to determine that even if that was incorrect, the tests set forth in 535(1) were not met as contended for. The Commissioner agreed that the Concession Agreement satisfied one of the tests provided for in but concluded under 536(3) that the public interest favoured disclosure of the Concession Agreement. ISSUES BEFORE THE COURT these legal subn'iissions, to the Fourth Record or to the Concession Agreement refer to the Concession Agreement excluding Schedule 3. 10. Whereas complaint has already been recited in Opposition Papers regarding the manner in which the Minister's case is set out this may not detain the Court for the following reasons:- The Minister is no longer makinu an issues over the Commissioner?s Decision with regard to the third cate ror of records.4 a f: ?l The Minister has indicated in affidavit that no points will be taken any longer with regard to whether or not the absence of an internal review meant that the Commissioner lacked jurisdiction. 11. Whereas these submissions are prepared without sight of any submissions from the Minister (despite requests to agree to staggered submissions which have been ignored) it does appear that the Minister raises the following main contentions: H. b. There was an absence of either a proper opportunity to make submissions and/or the Commissioner should have given the Minister and/or eNet an opportunity to comment on what they refer to as a ?preliminary decision? before the final decision. The Commissioner failed to properly apply 5.35 and 3.36 of the FOIA. Thereafter there are various ?miscellaneous? points which appear to be still in issue but it appears that the above are the main issues simply by reference to the multiplicity of grounds directed at what appear to be the above points. 12. In particular, given that this Appeal puts matters of fair procedures in issue, it is important to essay a history of how the matter progressed before the 4 The Minister's position is explained in an unfiled (but served} affidavit of Ms. Finola Rossi of 18 July 2016. Commissioner. This will illustrate how unmeritorious the complaints regarding fair procedures are and also constitutes the chronology for the purposes of Practice Direction HC 68. PROGRESSION OF MATTERS BEFORE THE COMMISSIONER 13. When the Minister was dealing with the Request, the procedure under 5.38 of the FOIA was specifically invoked by the Minister on 14 anua 2015 to afford the Second Notice Party (?eNet?) an opportunity to make submissions in accordance with that section. 14. Submissions from eNet in response to the invitation of 14 January 2015 were provided to the Minister on 3 February 2015. At this point, therefore, eNet put their position out clearly on the Records at issue including, of course, the Concession Agreement. As is seen later, eNet confirmed this submission, which engaged with precedent and legal argument, was prepared with legal assistance. 15. For present purposes, it suffices to say that the Minister made a decision on the Request as concerns the Concession Agreement on 16 February 201_ .5 The reasons for refusing access to same was clearly set out invoking s35 and 36 of the FOIA on the basis that ?a duty of confidence? existed ?between the parties? to the Concession Agreement (which was said to satisfy It was also said that 3.36 was relevant in that the release of the Concession Agreement ?could have a negative effect 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 financial loss to the compatriy.n NO specific attention, it seems, was paid at all to the public interest aspects of 5.35 and 36.6 3The Minister made a decision on the Request on 21 January 2015 on aspects of the. Request which do not concern the Court the first and second category). The. Minister decided to split the Request and sought the submissions from eNet on the third and fourth category. This is acknowledged in, for example, the email from the Commissioner to Mr. Sheridan on 25 March 2015. 6 Something Mr. Sheridan picked up in an email to the Minister on 18 February 2015. 16. 17. 18. 19. 20. I?m) K?s) Thereafter on 19 February 2015 the Minister expressly advised Mr. Sheridan of his right to appeal ?under of the F01 Act 2014.? On 2 March 2015, Mr. Sheridan submitted his application for review to the Commissioner. On 27 March 2015 the Commissioner wrote to Mr. Sheridan stating it had accepted the matter and sought Mr. Sheridan?s submission by 14 April 2015. On the same date a similar letter was sent to eNet with a same date for submissions i.e. 14 April 2015. On 15; April 2015 an email was received from eNet which stated that disclosure would be opposed and attached the initial response (Le. of 3 February 2015) to the Minister i.e. no new submissions were furnished and specific reference was made back to its original submission to the Minister as expressing the views of eNet. On 12 May 2015 the Commissioner wrote to the Minister regarding submissions. Of particular note is that the request contained a targeted guide for the Minister on the issues which arose in the matter. The letter seeking submissions advised on the onus on the Minister to justify the refusal (with regard to of the FOIA) and specifically indicated that this should be considered to be a final opportunity to justify the decision taken in this case. For the information of the Court at this point makes it entirely Clear that ?a decision to refuse to grant an F01 request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.? . Submissions were then received by the Minister on 26 May 2015. These will be referred to in full if necessary but no challenge is actually made to the Commissioner?s Decision for misunderstanding or otherwise misrepresenting the submissions. 1f the Minister persists in making arguments in this Court which were not made to the Commissioner then same will be opened in full to deal with this. . On 20 Iuly 201.5 the Commissioner contacted the. Minister by telephone with some queries which were addressed and a memo of this created. This was followed up by an email at 14.35 of the same. day and the Minister's position sought on certain issues set out in the email by 27 Iuly 2015. The Minister replied on 24 July 201.5 setting out its position on the issues outlined as above. . Having received that, on 29 Iuly 2015 the Commissioner emailed the Minister setting out two points on which it was said that contact would be made that week to obtain clarification on. Further information was received from the Minister on 30 Iuly 201.5. . On 13 August 2015 the Commissioner made contact with eNet through email indicating that it hoped to discuss some queries with eNet. The envisaged phone call took place on 18 August 2015 and a memo of same was created by the Commissioner. This was then followed up on 19 August 201.5 with an email to enet wherein it was said that if there wished to be any follow up information provided it could be done by 24 August 201.5. This email was sent at 1.50. At 17.53 a response was received saying ?Thanks Jo, We will take a look at it this week?. However, on 21 August 2015 eNet requested an extension of time to 21 September 2015 for their response. At this very late point, enet stated that they ?don?t fully understand the process on the decision being made and how it is concluded?. On 24 August 2015 a memo was created of a telephone conversation between the Commissioner and enet where the issue of an extension of time being refused was discussed and the process was discussed. This will be referred to in more detail below as its contents bear significantly on the case being made about affording eNet an opportunity make more submissions. In any event, on 2% Aug ust 2015 enet did, in fact, provide its views on what it deemed commerciallysensitive i.e. the entire content of the Concession Agreement. 26.011 19 October 2015 (after a request of 16 October 2015) the Minister clarified that certain aspects of the Concession Agreement were available online. 27.011 17 November 2015 the Commissioner emailed Mr. Sheridan seeking to make contact regarding some queries it had. A memo was generated of a phone conversation with Mr. Sheridan in this respect on 17 November 2015. 28. The Commissioner made its Decision on 30 November 2015 and thereafter this Appeal was initiated. COMPLAINTS ABOUT FAIRNESS OF PROCEDURES 29. As noted above, the Minister appears to make two points in relation to fair procedures. a. First, and whereas not actually pleaded originally and within time, in an affidavit of 18 July 2016 the Minister contends that the Commissioner has ?abandoned? a practice of furnishing a ?draft decision? for comments. b. Second, that inadequate opportunity was afforded to eNet to make submissions. Furnishing a Preliminary Decision for Comment Thereafter some correspondence ensued with the Minister regarding whether Certain aspects of the records had been provided or not. None of this is material. 30. Paragraph 14 of the affidavit sworn on behalf of the Minister on 18 July 2016 31. makes critical reference to the Commissioner ?abandoning? a practice whereby it is said that ?other Commissioners" would provide ?draft decisions" and invite comments. Similarly, the affidavit of the 8 July 2016 sworn on behalf of eNet makes the point that eNet assumed a ?preliminary decision? would be furnished for comment, but it appears that this assumption was formed on the basis of communications to eNet from the Minister. There is no merit to this complaint. The Commissioner set out a clear response to this complaint in an affidavit of 22 July 2016 and no reply has been made by the Minister to that affidavit to dispute any of its contents. in any event a complaint cannot be advanced by the Minister at all (or eNet) as it was not formulated in the grounds of appeal which were brought within time. It first emerged in an affidavit sworn on behalf of eNet on 8 July 2016 and in an affidavit sworn on behalf of the Minister of 18 July 2016 (neither of which affidavits have to date been filed in the Central Office). It is far from clear if this point (given the lack of response to the Commissioner?s affidavit of 22 July 2016) is being pressed. If it is, the Commissioner reserves the right to return to this point and these submissions will deal with the merits of the contention. . In her affidavit of 22 July 2016, Elizabeth Dolan deposed that in recent years the Commissioner?s Office completed a reform process during 2014 culminating in the introduction of revised methodologies which came into effect on 2 June 2014 to deal, in particular, with the reduction of backlog and delay. In the past, investigative staff furnished detailed preliminary views (not draft decisions) to allow, in effect, an 1:01 body with another chance to justify refusing a request or to allow the parties to settle the review if either party accepted the investigator's views. As part of the reform process, it was decided not to continue this practice (which is not required by the FOI Act). F01 bodies are now informed that they should treat the opportunity to make a submission as a final chance to justify their decision. This actually happened expressly in this case and the letter of 12 May 2015 inviting submissions stated 9 in bold font that "if no substantive response is received by this date, it will be assumed that you luwe no submission to make and the Commissioner may proceed to a decision without further reference to your organisation." 3.3. Ms. Dolan also deposes that this was set out in the Commissioner?s Annual Reports in 2014 and 2015. 34. Ms. Dolan also deposed that prior to these new procedures being adopted briefings were held with 1:01 bodies including the Minister?s department (who actually sent an attendee) which explained the rationale for the. changes and drew attention to, inter alia, the cessation of the practice of sending preliminary views except in cases where e.g. an exemption not relied on previously is being considered. In addition a letter issued to all 1:01 bodies from the Commissioner in April 2014 notifying them of the changes and this was sent to the Appellant's department and was acknowledged. None of this has been disputed. Therefore there is absolutely no basis whatsoever to any contention that some expectation existed that a preliminary decision would be furnished for further comment. eNet?s Participation 35. The Minister (and despite not being an Appellant, eNet) says that eNet was not afforded proper entitlements to make submissions. 1n the first place, eNet is not an Appellant. It is unusual for the Appellant to seek to make such a submission on behalf of the body whose submissions it was supposed to be considering independently as part of the FOI process before it. Notably, it was only after this point was made by the Commissioner in response to the Minister?s originating papers that eNet sought to set out their position on affidavit on 8 July 2016 which was, in fact, furnished to the Commissioner?s solicitors not by anyone acting for eNet but by the Minister. The curious interaction between the Minister (who was, of course, deciding on Mr. Sheridan?s request and considering eNet?s opposition to same) will be 10 addressed again below. The Commissioner submits that eNet has not been deprived of an opportunity to make submissions at all. 36. An opportunity was given to eNet to provide its view to the Minister. eNet did this on 3 February 2015. This was done with legal assistance and advice.8 This fact is important because when the matter was before the Commissioner, contact was made with eNet for the purposes of seeking its views on 27 March 2015. A submission was then made by eNet on 14 April 2015 referrino back to their submissions furnished to the Minister of 3 Februarv2015. Thus, at this point, a commercial entity (which has obtained legal advice) has decided to make its case to the Commissioner by referring back to the case it made to the Minister with the benefit of legal advice. This is completely consistent with how the Minister approached the matter by contending that his original Decision was justified. Similarly, eNet contended that its original argument subsisted. That was perfectly reasonable. What is not reasonable is the position now being maintained that no proper chance ras given to make its case when, in fact, eNet had made its case. 37. On 13 August 2015 the Commissioner made contact with eNet through email indicating that it hoped to discuss some queries with eNet. A phone call took place on 18 August 2015 and a memo of same was created by the Commissioner. This was then followed up on 19 August 2015 with an email to eNet wherein it was said that if there wished to be any follow up information provided it could be done by 24 August 2015. This email was sent at 11.50. At 17.53 a response was received saying ?Thanks Jo, We will take a look at it this week?. However, on 21 August 2015 eNet requested an extension of time to 21 September 2015 for their response. At this very late point, eNet stated that they ?don?t fully understand the process on the decision being made and how it is concluded. 1? With all due respect to eNet it is remarkable that 3 Whereas this interrupts the chronology it may be noted that the memorandum of the telephone call between the Comissioner?s staff with eNet dated 24 August 2015 demonstrates that eNet had obtained legal assistance in preparing these submissions. Indeed, it can hardly be unreasonable for a body such as eNet to have legal advice readily available or accessible. 11 this level of inability to understand ?what is going on? is beingr professed yet this is put forward as being part of the reason for requiring more time. 38. On 24 August 2015 a memo was created of a telephone conversation between the Commissioner and eNet where the issue of an extension of time. being refused was discussed and the process was discussed. Its contents bear significantly on the case being made about affording eNet an opportunity make more submission. a. It notes the view communicated to eNet that it was aware of the request since January 2015 and had already provided professional submission (with legal advice) to the Minister. 1). Significantly, the memo indicates that eNet actually had been discussing the matter with the Minister (despite the Minister?s decision being that under review) and were of the impression that a ?preliminary decision? would be furnished. That apprehension was corrected as the memo indicates. c. In any event, on 24 August 2015 enet did, in fact, provide its views on what it deemed commercially sensitive information being, in effect and in its own words, the. entire Concession Agreement. 39. The Appellant?s complaint appears to be that eNet was ?only? given between 19 August and 24 August to explain what was commercially sensitive. This ignores the fact that it had already explained its position. At that point the Commissioner was attempting to probe whether concessions could be made. The memo indicates that eNet's belief that a ?preliminary decision? would be furnished was fuelled by the Minister incorrectly informing eNet in those terms. It is somewhat surprising for eNet to say in its affidavit of 18 july 2016 that the process should have been ?explained? to it in more detail by the Commissioner when the only misapprehension has been created by the Minister wrongly informing eNet of a practice which has not existed since 2014 and which had been advised at a meeting whereby the Minister actually had an attendee. Again, there has been no replying affidax-tit to that of the Commissioner which dealt with the above on 22 July 2016. indeed, precisely why the Minister and eNet were in correspondence or discussion over the Minister?s appeal to the Commissioner and the form, manner or procedures which govern eNet?s submissions requires explanation. Further, to say that eNet ?don?t fully understand the process on the decision being made and how it is concluded? seems unnecessary when the memo of the phone call (which has not been challenged) of 24 August 2015 indicates that eNet had legal advice from the VC l?y outset. Fair Procedures 40. it is ofcourse accepted that the procedures adopted by the Commissioner must be fair. However, it has been recognised that the specific procedures which are adopted are for the Commissioner to decide upon so long as the overall outcome is fair; National Maternity Hospital [2007] 3 IR 643.9 There is no legal requirement which says that fairness requires a decision maker to furnish ?draft decisions" or preliminary views for comment in every case. 41. In this case it is patently clear as a matter of fact (see the memo of 24 August 2015) that the Commissioner was of the view that it had sufficient information before it to make a Decision. A decision maker is not required to facilitate endless rounds of submissions (National Maternity Hospital [2007] 3 IR 643, at 669; Evans e. An Bord Pieanaia (High Court, unreported 7th November 2003 at 24). A full and appropriate opportunity was given for each party to put their a Quirke referred to the informal nature of the proceedings which was then set out in s.37(6) and now in Subject to this Act, the procedure for conducting a review under section 22 or an investigation under section 44 shall be such as the Commissioner considers appropriate in all the circumstances of the case and, without prejudice to the foregoing, shall be as informal as is consistent with the due performance of the functions of the Commissioner. 13 case forward. Indeed, a point was made by Charleton in Kinny County Council cu An Bord Pleamila [2014] IEHC 238 at para. 12 ?Fundamentally, one might posit as an inescapable test of procedural fairness before administrative bodies: did the party now complaining have a reasonable opportunity to make any case which was essential to their point of view? That is the test on the authority of Ballyeclmond a: Commission for Energy Regulation [2006] I.E.H.C. 206 and Asliford Castle cu SIPTU [2007] 4 IR. 70. That principle was not breached in this Case. LAW RELEVANT TO THE CONSIDERATION OF THE DECISION 42. The Commissioner considered both s35 and s36 as these were the provisions which were relevant and put in issue by the Minister and eNet. Before these submissions address the Commissioner?s Decision, it may be of some assistance to set out some of the very well established principles that govern the nature of the Court?s role in dealing with an Appeal of this nature which will be of relevance here. The Underlying Purpose of the FOIA 43. The purpose of the FOIA is outlined in part by 5.11 (3), which provides that an FOI body (including the Minister) in performing any function under this Act, shall have regard to: 10 In Ashford Castle SIPTU [2007] 4 IR 70 Clarke I held that the question is whether the process, taken as a whole, gave the Applicant a reasonable opportunity to deal with the issues which influenced the Decision. Clarke I also considered a similar issue in Lord Baliyedmond 1: Commission for Energy Regulation [2006] IEHC 206 where he held (ofa similar point):? The procedural issue is, therefore, in my view, one which boils down to a question of whether, taken as whole. it can be said that Lord Ballyedmond had a reasonable opportunity to make any case which he wished to as to why the project should not proceed in a manner which affected his lands to any greater extent than the way in which they would have been affected by the adoption of route B. As part of that issue it is? of course, necessary to consider whether Lord Ballyedmond had a reasonable opportunity to deal with any case adverse. to his contention. 14 the need to achieve greater openness in the activities of POI 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 F01 bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies. 44. SO, in Sheedy 1,1 information Commissioner [2005] 2 272 at 275 Fennelly] held in the Supreme Court (in referring to the prior legislation):? 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 benefit of every citizen. It lets light in to the offices and filing 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. 15 45. On many occasions the Courts have approached a consideration of the Commissioner?s decisions with an orientation based on this clear philosophy. ln Deely ii The Information Commissioner [200? 3 IR 439, at 442 McKechnie held of the predecessor legislation that it ?is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy.? In Minister for Education ru information Commissioner [2009] 1 IR 589 at 594 McGovern made the following important statement:? [Tlhe Act provides that it was the intention of the Oireachtas that it is only in exceptional cases 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. 46. It is not unreasonable to view the entire philosophy of the. Act as being orientated towards facilitating the right of access as ?against? FOI bodies because the clear legislative policy is that bodies such as government bodies and the Minister should be (as Fennelly] held) open to scrutiny. A Refusal is Presumed Not to Be Justified 47. Section 22(12)(b) makes it entirely clear that ?a decision to refuse to grant an request 5,111? be presumed not to have been justified unless the head concerned shows to the satis?iction of the Commissioner that the decision was justified.? Thus, consistent with the underlying philosophy of the Act a very clear burden is placed on FOI bodies to justify a refusal. The Courts have consistently condemned, for example, attempts to justify why disclosure may, for example, breach an alleged duty of confidence (under s35) or cause material financial loss (s36) or prejudice a competitive position (5.36) without actually providing specific detail and engaging with specific argument on these points (See Westu?ood Club 16 Information Commissioner [2014] 375 at paragraphs 6770).? Thus, the submissions which, in this case, the Minister and eNet made were very important. They were afforded the chance to grapple with the detail necessary to consider the application of the relevant exemptions (in this case i.e. 55.35? 36). This is particularly relevant in this case as dealt with below. The Nature of the Court's Jurisdiction on Appeal Standard of Review and Onus of Proof 48. Notwithstanding the use of the term ?appeal? in the FOIA it is recognised, as was held by White in O?Graciy 1! information Commissioner [2007] 152 ?that this appeal is limited in scope and is not a hearing "De Noeo??. A leading summary of applicable principle in Deeiy The Information Commissioner [2001] 3 4.39 McKechnie J. at 452 states12 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, confined as to its remit, in the manner following? it cannot set aside findings of primary fact unless there is no evidence to support such findings; it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw; See also Deei)? The information Coimriissionerl2001] 3 439 at 453 tying in the need for full engagement with the ?spirit of the legislation?. 1: And approved by Fennelly in Shani)" The information Commissioner 659 Ors [2005applied multiple times in cases such as in Gannon information Commissioner [2006] 17. 17 it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally; 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: see for example Mara v. Hummingbird Ltd. [1982] 2 1.L.R.M. 421, Henry Denny Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR. 34 and Premier Periclase Commissioner of Valuation (Unreported, High Court, Kelly J., 24th June, 1999). 49. In Killilea Information Commissioner [2003] 2 1R 402 it was held that a decision of the Commissioner would not be interfered with unless it was irrational or unreasonable.H Recently in McKillen ii Information Commissioner [2016] IEHC 27 Noonan] held at [56] that: 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 flies 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. 1'1? The Court will of course note that the records in their full content are not before the Court in open exhibit. This is in accordance with normal practice and, indeed, was the subject of comment of Quirke in National Maternity Hospital information Commissioner [200?] .3 IR 643 at 661 where the Court explained declining to review the documents at issue and held "It is not the function of the court to oversee or supervise the discharge by the Commissioner of her functions or the exercise of the discretion vested in 18 50. in Deeiy it was also clearly stated that the onus is on the Appellant to prove that the decision of the Commissioner is erroneous in law.H in Westwood Club on. Information Commissioner [2014] 375, Cross followed Deeiy in determining that the onus of proof in a s. 42 appeal rests on the appellant who had to satisfy the test in O'Keeffe. Also in Cannon cu. The information CommissionerlZOO?] 1 LR. 270 Quirke also applied the criteria set out in both Deeiy and O?Keeffe. 5 1. Thus, the Commissioner's Decision should not be set aside unless there is no evidence to support it and it is for the Appellant to prove this. This reflects the well established proposition of law that there is a presumption that the decisions of a public statutory body are valid until the contrary is shown and the Commissioner refers to the decision of Finlay in Comhaitas Ceoiteori Eireann cu Dun Laoghaire, Unreported, High Court, 14 December 1977 (Finlay P) in this respect.15 Exclusion of Arguments Not Made Before the Commissioner 52. it is submitted that this Court should not consider grounds of appeal which are effectively based on submissions and material which were not put before the Commissioner. See Minister for Education cu information Commissioner [2009] 1 iR 588, at 591?592 and South West Area Health Board 1: information Commissioner [2005] 2 iR 547. at 553 where (in the latter case) held: it would be wholly unsatisfactory that a decision on appeal should be made without the matter having first been raised before the Commissioner. 53. See also The Governors of the Hospital for the Relief of Poor Lying in W/omen 1! information Commissioner [2013] i 1 at 29 wherein Fennelly] held that the See also Sheed}: The information Commissioner 599 Ors [2005] iR 272. 15 See the adoption of same in Weston 1' An Bord Pieamiia [2010] [El 1C 25") and Kiohn An Bani iJieam-iia [2009] iR 59. 19 High Court in carrying out its statutory appeal function could only entertain points of law in the decision under appeal upon which the Commissioner had made a decision): 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. 54. In McKillen information Commissioner [2016] 27 Noonan] held at [56] approved these views and held:? A s. 42 appeal is not a dc noeo 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 THE DECISION ON SECTION 36 .55. Section 36(1) provides (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains? trade secrets of a person other than the requester concerned, ?nancial, commercial, scientific 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 a, 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 information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. 56. This is subject to 336(3) which provides that s.36(1) not apply in relation to case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing,r to grant the FOI request. 57. Section 36(1)(b) contains two different bases for exemption. The first would require (in this case) the Concession Agreement to contain ?financial, commercial, scientific or technical or other information? where disclosure of same would ?reasonably be expected to result in a material financial loss or gain to the person to whom the information relates.? The second does not focus on material financial loss or gain, but relates to proof of a ?prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.? These have been identified as ?harm based exemptions? (see e.g. McKillen 1) information Commissioner [2016] 27, at (in the context of the predecessor to s36 in the Freedom of Information Act, 1997 In Eircom ti Henry and De artment A icultiire and Poodle the Commissioner g7 1? Decision No. 98114, 98132, 98164 and 98183 of 13 january 2000 (cited and approved in W?estii'ood at para.54) noted that ?the essence of the test in [5.36( is not the nature of the information but the nature of the harm which might be occasioned by its release. Justifying such a position does not involve reciting generalisations. Indeed, that ?as sr.)ecifically condemned by Cross in Westwoocl. [n that case, the failure to explain the particular reasons for why particular issues were commercially sensitive was held to be fatal (and the Commissioner in error for refusing access without obtaining that detail).18 58.111 this case and with regard to the first limb, the Commissioner had the submission before him and recited them as follows? The Department submits that release of the contract could prejudice the competitive position of enet and may result in a material financial loss to enet. It says that enet's competitors could leverage the information in the contract to gain competitive advantage over enet in the market. Finally, it submits that releasing the contract would penalise enet for transacting business with the State and could discourage future potential bidders. Enet submits that although it cannot be certain that releasing the contract would cause it financial harm, it believes that it would suffer substantial losses. It has identified two types of harm which it could incur. First, it says that competitors for a future tender to manage and operate the MANs could use the information to their advantage in future tenders. Secondly, it says that its own customers could leverage the information to their advantage in relation to their agreements with enet. Enet submits that the contract could provide an incomplete and unbalanced picture to its customers in respect of enet's obligations to the Department. [Page 5] The. reference was to 15 See para.68 in particular. Ix.) l?-J ?39. The Commissioner did not accept that there was a reasonable expectation of material loss. This was a conclusion the Commissioner was eminently entitled to reach. As can be seen from the Commissioner?s Decision the submissions made were specifically engaged with by the Commissioner. However, with respect to the second limb of the Commissioner noted the lower threshold for same ?could and was willing to accept in broad terms that there was a possibility of the stipulated harm occurring. In this respect, whereas the Minister seems to make some complaint regarding the Commissioner?s conelLISions on the first limb none of that is actually relevant given that the Commissioner did, in fact, proceed to consider that the second limb of was engaged and, as will be seen from the Decision, specifically engaged on every single submission that was made in consideration of the public interest balancing test. 60. Having done so, the Commissioner then turned to consider s.36(3) and whether the public interest required disclosure. Obviously all of the Commissioner?s conclusions on 3.36 are relevant here in terms of identifying precisely what it is at issue and of particular relevance is the followings Enet is managing and operating what the Department has described to this Office as a "unique infrastructure". In contacts with this Office, enet acknowledged that there is no direct comparator to the service which it provides to the State under this contractual arrangement. Therefore, this is not a case of disclosing to the world at large the preferential rates which a private body charges a public body for the same service it provides to other customers. Furthermore, neither the Department nor enet identified for this Office particularly sensitive information within the contract, the release of which would disclose (for example) enet's internal business methodology. [Page 6] 61.The Commissioner first noted that the FOIA itself highlights the public interest of openness and accountability of public bodies in how they conduct business and in the proper administration of public contracts and on the expenditure of public monies and in transparency and use of public property and public assets. A complaint appears to be that the Commissioner gave too much weight to the ?purpose" of the Act and thereby disregarded the meaning and effect of 5.36. First, it is noted that the Minister himself accepts these point in his submissions made to the Commissioner. Second, it is not correct (if this is what is alleged) that the emphasis on these points destroys the meaning of s36. The purpose of the Act is very clear and identifies the following aspect of the public interest as set out by the Commissioner:? 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 significant 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. [Page 6] 62. The Commissioner clearly recognised the public interest in protecting commercially sensitive information. Indeed, that is recognised by s36. The Commissioner recognised that the public interest in public transparency in relation to public bodies is not absolute. In a prior conclusion of the Commissioner, he stated that: Furthermore, neither the Department nor enet identified for this Office 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 Westwood Club The Information Commissioner anor [2014] IEHC 375, Cross I. 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. [Page 6] 63. The Commissioner referred to the unchallenged finding that MANs are a valuable State Asset. The Commissioner held it was in the public interest to disclose the terms and conditions under which eNet has agreed to manage, maintain and operate such an asset? 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. In reaching this conclusion, I have had regard to the finding of the former Commissioner in Case 080232 (Mr Colin Coyle, Sunday Times (St Dublin City Council). That case related to a concession agreement concerning the provision of outdoor advertising and public amenities in Dublin City, sometimes referred to as the "bikes for billboards" scheme. The Commissioner referred to the "significant public interest in openness and transparency in the matter of contracts which public bodies enter into in connection with managing land and other assets on behalf of the public". She observed that there was a need for transparency and accountability in the usage of public property and assets and that there was a strong public interest in the proper administration of public contracts and ensuring that value, in the broadest sense of that term, was obtained. [Pages 6 and 7] 64. Further, the Commissioner then specifically referred to all the reasons put forward to justify non disclosure. The Commissioner did not accept the points being made and set out the reasons very clearly:? In the first 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 of 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 futLIre. tenders. Secondly, in any event, I do not accept that the information contained in the records would automatically benefit future tenderers. This contract relates to one particular phase of the it does not follow that the State's 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. 981 14 above). Finally, I agree with the findings 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 section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness 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 6?3. 66. 67. 68. 69. law" as referred to by Macken in Rotunda Hospital Information Commissioner [301 l] IESC 26. [Pages 7 8] Thus, in this case, the public interest required disclosure rather than refusal of First, the. Commissioner dealt with each and every submission that was put before it and the Minister?s arguments to the contrary are simply baseless. Second, it is contended by the Appellant that the Commissioner was wrong to point out the contradiction in submissions made to it. The argument was made that disclosure would deter future potential bidders from seeking to manage, maintain and operate the MAN. The logic of that argument was that knowledge that the contracts might be disclosed would prevent people bidding for these contracts which generate private profit. On the one hand the Minister says no?one will bid if they know the contract may be disclosed but on the other hand says disclosure gives future rival bidders an advantage. This was a contradiction and the Commissioner was right to have regard to it. Third, the Minister says the Commissioner said that no public body could have an expectation of confidentiality after the 2014 Act. That is not a fair representation of the Decision. The Commissioner is clearly identifying the public interest which runs through the Act in respect of transparency over State dealings with parties who operate value State assets for profit. In this case the justifications put forward for refusal were not sufficient. Indeed, it is entirely consistent with Fennelly J?s observation in Sheedy cited above, that the fact of the existence of the FOIA is itself recognition of this aspect of the public interest. Fourth, the Minister says the Commissioner has adopted a standard which would require one to show that disclosure would ?totally undermine? a business in order for the public interest to warrant refusal. Again, this avoids 70. the context of the Decision. The Commissioner had specifically stated that ?neither the Department nor enet identified for this O??ice particularly sensitiq.re information within the contract, the release of which would disclose (for example) enet's internal business methodology." Thus, in the first place, assuming one had to show a total undermining of business, no effort had been made in this case to even approach identifying what particular information could cause prejudice. In any event, the point is as follows. Where private entities do business with the State they do so now in the context of the FOIA. There is an expectation that same is done openly and transparently. A private entity cannot simply assert that it is a commercial entity to protect information from disclosure. If that was the case then there would be no purpose to s.36(3) which clearly permits an override of arguments about ?commercial sensitivity? in the public interest. Thus the threshold must necessarily be high in terms of what interest a private entity can put in the mix to demonstrate why it is not in the public interest that records relating to its dealings with the State should not be disclosed. In short, 5.36 does not on its face protect the commercial interest of private entities without more. It would, of course, not be in the public interest if disclosure would, in fact, totally undermine a private enterprise. Thus, such a standard is eminently reasonable and, as the Decision makes clear, has been applied in prior cases by the Commissioner. There must be some particularly significant reason as to why records even coming within 536(1) should not be disclosed having regard to s.36(3) and none 'as shown he re. Fifth, a complaint appears to be made that the Commissioner failed to identify ?each and every? element of the relevant public interest. No actual particulars of this have been pleaded. The Commissioner submits the test was properly considered and applied. The Minister contends the Commissioner did not have any regard to the need for equality and non discrimination amongst tenderers per TFEU and Public Procurement Directives. No explanation of the relevance of this has ever been put forward. However, any point about equality is misplaced. The public interest factors here arise from the (le facto decision of eNet to seek to profit (as is their right) from contracting with the State over the management and operation of a valuable State resource. Any other person in a similar position would find the public interest test applied similarly. There is no rationality to comparing that position with a tenderer who may tender for a completely private contract with a completely private entity as that is not the same. 71. How the Commissioner approaches the concept of the public interest, has been thoroughly addressed by the Supreme Court in The Governors of the Hospital for the Relief of Poor Lying in Women information Commissioner [2013] 1 IR 1 (?the Rotunda case?). In that case a person sought information on the age of his natural mother from the Rotunda hospital. The Information Commissioner did not accept a submission of the hospital that the information was confidential and further had determined that the public interest favoured release on the basis of the public interest in ?persons generally having the fullest possible information on their origins.? The Supreme Court held that this was a legal error. In particular, Macken held that the Commissioner had failed to properly balance factors relevant to the public interest and failed to give proper weight to the public interest in maintaining patient confidentiality. Further, in an important passage (but obiter). Macken at 13.75- 76 it was said:? l'public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law. In the present case, the respondent made a statement of alleged policy as constituting the "public interest". There is no evidence that the Oireachtas has adopted such a policy. 72. The public interest objectives set out in 5.1 FOIA (recited above) which were introduced by the Oireachtas when enacting the FOIA 2014 (similar policy objectives and statements not being found in the earlier Acts of 1997 and 2003) exemplify the public interest considerations the Commissioner is required to have regard to in determining the correct application of exemptions such as provided for in 73. The Court may also find assistance in Westwood Club 41 Information Commissioner [2014] 375. In that case Cross specifically referred to the. Commissioner relying on the Rotunda case for the proposition that a release under s. 27(3) may only be ordered if there is:? A true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law. 74. In this case, the public interest identified by the Commissioner was, indeed, a public interest actually set out in submissions by the Minister. Indeed, the Minister ought not now be allowed to resile from those submissions. it was expressly said that:? ?There is a public interest consideration in enhancing the accountability of Government There is a public interest in ensuring that stat? and local government agencies are accountable to the public for the decisions they make and related expendittire.? 75. It is the public interest in having access to the terms and conditions under which enet has agreed to manage, maintain and operate a valuable State asset which in turn services the "significant public interest in openness and transparency in the matter of contracts which public bodies enter into in connection with managing land and other assets on behalf of the public". it is submitted that there was a strong public interest in the proper administration of public contracts. The Minister appears to recognise this public interest. The real complaint, it would appear, 30 is that the Minister is unhappy with how the Commissioner balanced the various factors set out in the Decision. 76. With particular regard to the application of the public interest test in Sheedy information Commissioner [2005] 2 LR. 272, Kearns (as he then was) in the course of delivering the majority judgment of the Supreme Court expressed a similar view (at p. 299): ?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 interest provision 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'Keeffe v. An Bord Pie-anala [1993] 1 IR. 39 makes 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.? 77. In citing this in Cannon Quirke] held at 281-282 The appropriate exercise by the respondent of the jurisdiction conferred upon her by s. 26(1)(a) and s. 26(3) of the Act of 1997 required a balancing exercise between competing interests. That exercise was entirely within the jurisdiction of the respondent (see the judgment of the Supreme Court (Kearns in Sheedy cu. Information Commissioner [2004] IEHC 192, [2004] 2 IR. 533). There was adequate material before her to enable her to decide as she did. 78. There is simply nothing to the contention that the Commissioner has erred in law in carrying out the balancing function required by 31 THE DECISION ON SECTION 35 The Provisions 79. Section provides as follows? (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 confidence and on the understanding that it would be treated by it as confidential (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 br ?ach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part I or 2 of Schedule 3 of an enactment specified 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 confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an 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, he better served by granting than by refusing to grant the request concerned Section 35(2) Determines the Matter 80. The Commissioner concluded that 555(2) was relevant in that it disapplied in the case of agreements between public bodies and service providers. The. Minister contends that this was an error but absolutely no particulars of this are given at all. Indeed, no effort was even made by the Minister to address this and, indeed, no evidence has even been put before. the Court on this point. Section 35(2) states that the exemption which may arise under s.3.5(1) (which is still subject to cannot arise in relation to a record prepared by an body (being the Minister) or a service provider ?in the course of the perforimince of his or her functions unless disclosure of the information concerned would constitute a breach of a. duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an body or head or a director, or member of the staff of, an body or ofsuch a service provider.? In this case, it is entirely reasonable to view eNet as providing a contract for services to the Minister. It is a service provider.'0 Thus s.35(l) does not apply to a document which is prepared by either the PCT body (being the Minister) or eNet (being the service provider) unless that would involve a breach of a duty of confidence that 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." The policy of the legislation is clear in that records prepared Section 2, i'OlA provides that a ?service. provider" means a person who, at the tune the request was made, was not an 1301 body but was providing a service for an POI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person. 3 3 by the Minister (who is an POI body) cannot qualify for s.35(l) exemption if the alleged duty of confidentiality is alleged to exist with a service provider eNet). Section 35(2) was engaged and thus 535(1) does not arise. In this respect, should the Court accept that the Commissioner was correct here nothing more arises in relation to s35 at all. Consideration of Section 35(l)(b) 81. The Commissioner went to consider The Minister had submitted that a duty of confidence existed between it and eNet for the purposes of section The Commissioner did not accept this. A duty ofconfidence arises where information has been passed in confidence between parties where the expectation of confidence is held; see Cannon 0. The Information CommissionerI2006] 1 IR. 27, at 27912280; Sheetiy cu Information Commissioner [2005] 2 IR 272, at 292. 82. The Commissioner paid close attention to how the Minister and eNet invoked the supposed confidentiality clause in Clause 32. In this respect, serious errors are made in the Minister?s pleadings. The Commissioner did not conclude as is pleaded that clause 32.2 ?required the disclosure? of the records. Rather, it was concluded that this clause clearly indicates that the expectations of confidentiality were subject to the requirements of the Act. This is a point of some significance. Here the Minister alleges that the Commissioner erred because it did not accept that a duty of confidence existed as between both parties. However, Clause 32(2) makes it entirely clear that the Concession Agreement itself envisages being subject to the FOIA. Indeed, the clause itself obliged the State to Lise reasonable endeavours to prevent disclosure of ?confidential information? which was defined as information which was agreed between the parties from time to time as being confidential. It is self evident therefore that the Concession Agreement was not prepared on the basis of a shared assumption or expectation that its contents were confidential. Rather, it specifically reserved the right to ?from time to time? determine that pieces of 34 83. 84. it were. Neither the Minister nor eNet chose to engage on this, as the Commissioner makes clear, and say what particular information was believed to be confidential and why. Confidentiality implies and necessarily requires an expectation of confidentiality which said expectation must be able to withstand scrutiny. The Commissioner was fully correct to hold that many years after FOI legislation was enacted, putting their name to a document which specifically envisaged compliance with same and related to the management of a valuable State asset for private gain eNet could not have any expectation of confidentiality over the entire agreement. Indeed, the document itself anticipated that. Indeed, it is here where the Commissioner noted the very obvious fact that the Minister had initially proposed to release in the public interest. This, however, appears to relate to grounds which are now abandoned relating to s38 so it is presumed that this will not be pursued. OTHER POINTS Unfortunately very many other points are raised in the Grounds which are accompanied by no specific particulars at all. It is, however, impossible under Practice Direction HC 68 to set out full submission on every conceivable issue that the Minister has raised in grounds and the Commissioner must reserve the right to modify its written submissions depending on what is actually argued and in what detail. CONCLUSION 85. The Commissioner submits that the Minister?s Appeal should be dismissed. BRIAN FOLEY BL SHANE MURPHY SC 35