THE SUPREME COURT 2018/394 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 BETWEEN: MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES Appellant/Respondent -and- THE OFFICE OF THE INFORMATION COMMISSIONER Appellant/Respondent -and- GAVIN SHERIDAN First Notice Party -and-? E-NASC EIREANN TEORANTA t/a ENET Second Notice Party CORRECTED OUTLINE LEGAL SUBMISSIONS OF THE FIRST NOTICE PARTY he liberty of a nation is preserved not only by the laws, but by public information and knowledge as to how they are being administered.? Anders Chydenius, (Memorial on the freedom of printing (1776) ?Public business is the public ?s business. The people have the right to know. Freedom of information is their just heritage. Without that the citizens of a democracy have but changed their kings Harold L. Cross ?The Peoples ?s Right to Know (1953) ?The basic purpose of 01A is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed (United States Supreme Court NRLB 12 Robbins Tire Co. 437 US 214, 242 (1978) 174 Introduction 1. The First Notice Party (hereafter referred to as Mr Sheridan) is a journalist who has devoted his professional career to promoting increased transparency in relation to, inter alia, the expenditure of public money and the nature, type and costs associated with contracts entered into between public authorities and private entities. Mr Sheridan sought the records concerned in these proceedings in order to promote those values. Mr Sheridan has no direct personal interest in the records sought and does not stand to make any personal gain by virtue of their release. Notwithstanding the very limited resources available to a free?lance journalist and the considerable risk engendered in participation in Superior Court proceedings, Mr Sheridan participates in aid of this Honourable Court. In the interests of minimising the burden on this Honourable Court Mr Sheridan is conscious not to repeat the basic statements of law or provide (another) chronology and generally supports and adopts the arguments of the Information Commissioner (?the Commissioner). Without prejudice to that position Mr Sheridan reserves the right to make (or have made on his behalf) such oral submissions as are appropriate. Context and Background The Contract 4. Although the Freedom of Information Act 2014 (?the is formally requester and motive blind the subject matter of the record sought by Mr Sheridan provides valuable context to these proceedings. There is only one record in dispute between the parties. Mr Sheridan wishes to have sight of a contract entered into between the Minister and eNet for the operation of ?bre optic cables in towns and cities which are known as ?Metropolitan Area Networks until 2030. These Networks allow telecorn operators to provide telecoms services to customers and eNet has been awarded a concession agreement by the Minister to manage, maintain and operate the Networks. 175 5. Although the Networks constitute separate infrastructure from the proposed National Broadband Plan, eNet are involved in bidding for that contract. In addition it appears that tendering rounds which were due to take place in 2020 and 2024 for the operation of the Networks will now not take place and eNet will enjoy exclusivity in relation to their operation until 2030. 6. Mr Sheridan has serious concerns over how the contract was awarded, what terms are contained in the contract in relation to the ownership of critical State infrastructure, how the contract was awarded and the price paid to eNet. There is a signi?cant, pressing and obvious public interest in that contract being released pursuant to the FOIA. The Effect of the Court of Appeal?s decision 7. As a working free-lance journalist Mr Sheridan is uniquely quali?ed to offer a perspective on the profound practical consequences of the Court of Appeal?s approach. 8. The purpose of the FOIA is, helpfully contained in its Title (?Freedom of Information?) and Short Title. The effect of the Court of Appeal?s decision is to profoundly undermine that purpose. This can be demonstrated using the example provided by this case: i. As above Mr Sheridan wishes to have access to a contract entered into between the Minister and a commercial third party. ii. While not a necessary requirement for the purposes of the FOIA, Mr Sheridan believes it contains information of signi?cant concern in relation to the expenditure of taxpayer?s money. Mr Sheridan does not, however, know what information is contained in the contract or what its terms do or do not encompass. 176 iv. Vi. Vii. ix. Mr Sheridan (or any other member of the public) has no means, other than via the OIA of seeking access to the contract. The Minister, as a party to the contract, clearly knows the contents of the contract. The Minister is therefore in a position to identify (for the purposes of a FOIA request or a subsequent appeal to the Commissioner) if the contract falls within one of the exemption provisions for the purposes of the FOIA. The Minister is furthermore in a position to identify if there are public interest reasons as to why access to the contract should be granted or refused on public interest grounds. By contrast Mr Sheridan cannot make submissions as to whether or not the information contained in the contract does or does not fall within the exemption provisions and whether (or how) there may be a public interest in favour of disclosure. By de?nition there is therefore a profound systemic inequality of arms between Mr Sheridan seeking access to the information and the Minister in whose possession the information resides. Furthermore in opposition to any submission seeking disclosure of the document, the Minister would be entitled to make a contrary submission with the bene?t of access to the document. The Minister would therefore, unlike Mr Sheridan, be able to make cogent arguments against release of the document based on the content of the contested document. In those circumstances it is entirely in keeping with: the purposes of the Act (as identi?ed in the Title and repeatedly by this Honourable Court), 177 the clear and unambiguous text of section 22(12) discussed below; and 0 that inequality of arms, that the burden of justi?cation to justify a refusal should rest on the Minister. It is a burden that the Minister is capable of, but in this case, simply neglected or failed to discharge. Xl. On the other hand the effect of the Court of Appeal?s decision is to shift the burden of justi?cation onto Mr Sheridan. This shift is incompatible with: the purposes of the Act (as identi?ed in the Title and repeatedly by this Honourable Court), 0 the clear and unambiguous text of section 22(12); and 0 that inequality of arms. Xii. The result of the Court of Appeal?s decision is to require Mr Sheridan to persuade the Commissioner, that he should be entitled to access a document, in circumstances where he does not have any idea what the document contains. This is, with respect, the entire purpose of Freedom of Information stood on its head. 9. There is no unique, special or extreme circumstances in Mr Sheridan?s case. The above observations apply with equal force in respect of all applications for documents which fall into one or more of the exempt records categories. 10. It is for this reason that the result of the Court of Appeal?s decision would be to effectively limit the application of the FOIA to requests for personal information. Once a request ranges beyond that and into one or more of the exempt categories a requester will find itself in the impossible position identi?ed above. 178 11. The Court of Appeal?s decision will therefore have the effect of neutralising the FOIA in respect of the primary purpose of the Act as identi?ed by Mr Justice McKechnie in Deely v. The Information Commissioner ([2001] 3 IR. 439 at p. 442, Where the learned Judge held (emphasis added): "As can thus be seen the clear intention is that, subject to certain Speci?c and de?ned exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions. It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy. 12. It is the systemic danger posed by the Court of Appeal?s ?nding to the FOIA that underpins Mr Sheridan?s participation in these proceedings. In Mr Sheridan?s View the effect of the Court oprpeal?s ?nding would be to replace the right of access and the presumption in favour of disclosure with a position where securing access to exempt records would be practically impossible. That would have profound societal implications and would be contrary to the letter and spirit of the FOIA. The Role of FOI 13. The right of access has been fundamental in improving transparency and promoting accountability in Ireland. Documents which fall into one or more of the exempt records categories and which therefore bene?ted from the presumption of non?justification in either the FOIA or its 1997 predecessor underpinned the following stories (which are merely an indicative illustration of the public interest advanced through the public right of access to records held by FOI bodies): 179 A 10% reduction in claims for mileage by ministers in 2012 followed revelations in the Irish Mail on Sunday that education minister Ruairi Quinn was paid expenses for driving to and from his holiday home. The closure of the FAS science challenge programme followed the Sunday Independent's expose that it had been costing at least ?1.2m a year. A former Dail deputy (MP), Ivor Callely, was asked to hand back ?6,000 after the Sunday Tribune revealed his mileage claims had been miscalculated when he served as a junior minister. The expenditure of Waterford Institute of Technology's of?ce of the president was reduced by over ?150,000 annually following rep01ts in the Sunday Independent. Dail deputy Michael-Healy Rae refunded ?2,600 following revelations in the Irish Daily Mail about hundreds of phone calls to a reality TV show in which he appeared. Spending of around ?105,000 a year on secretarial assistance and mobile phones for former prime ministers ended following a series of stories in the Sunday Times. In 2011, the rules on performance assessment in the civil service were allowed to make certain employees ineligible for increments. It followed a story in the Sunday Times about the fact that only 1% of public servants were being given the lower rankings. A bonus of ?37,750 paid to the chief executive of Horse Racing Ireland was repaid following a series of articles in the Irish Examiner. Articles in the Irish Examiner and Irish Times documented expense claims at the Irish National Stud, such as ?85,000 spent on ?ights and chauffeurs. 180 14. 15. The salary of the chief executive of Coillte, the state?sponsored forestry company, was reduced by more than ?40,000 following articles in the Irish Examiner. The number of staff employed by the office of the speaker of the Dail was reduced, thus saving ?300,000 annually, following revelations by the Sunday Tribune. Ministerial travel in 2007 to coincide with St Patrick's Day festivities exceeded ?500,000. In 2012, the ?gure was just ?53,142 . It followed a series of articles by the Sunday Tribune and other newspapers. Fire Safety certificates/assessments released to School Boards of Management after the Rapid Build safety scandal in 2017. Access to assessments on their own schools were repeatedly refused by the Department of Education until the Irish Examiner sought access to them via the FOIA. A loophole in the tax system which allowed people to leave very signi?cant sums to sons and daughters tax free was identi?ed and closed after an investigation by the Sunday Times in 2017. Concerns around the scope of the Public Services Card identified after investigation by the Irish Times and eventually formed a prominent part of the Data Protection Commissioners investigation into over-reach of the PSC. In each case it fell to the body holding the documents and purporting to refuse access to them to justify their decision. In each case the person seeking access was starting from a default presumption of disclosure, to be displaced only by cogent reasoning to the contrary. In none of these cases (or the many others like them) could the journalist have made a cogent submission in order to seek access to documents they have no access to, and no way of rebutting arguments made by the record holding body who do. 181 16. This Honourable Court is entitled to take cognisance of the fact that the presumption of non-?justi?cation is the key mechanism which translates the lofty purpose of Mr Justice McKechnie in Deely into practical reality. If that mechanism is taken away, as the Court of Appeal proposes, the FOIA will be incapable of discharging the function for which it was designed or any function other than facilitating access by individuals to their personal information. High Court 17. In the High Court Mr Justice Noonan introduced his analysis by accurately identifying that Ms Justice Macken?s comments in Rotunda were obiter and (para 39) ?somewhat at odds? with the Views of Mr Justice Fennelly in the same case. He then quotes the relevant passage and characterises it in the following terms: ?Accordingly, Fennelly expressly accepted that the presumption contained in s. 3 4 (12) of the 1997 Act applied to the facts of that case which concerned exempt records?. 18. Mr Justice Noonan then identified that Mr Justice Cross had applied the presumption to exempt records in Westwood Club Information Commissioner [2014] IEHC 375. He then went on to note (para 41) in an analysis worth quoting at some length (emphasis added): ?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 s. 34 (12) It seems to me that had the Oireachtas wished to create an express exception ?om 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 9 182 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. The Court of Appeal 19. 20. On the other hand Mr Justice Birmingham con?ned his analysis (at para 19- 22 in?ia) to observing that the Minister and the Commissioner held different views as to the status of Ms Justice Macken?s decision. Mr Justice Birmingham then resolved this dif?culty by reference to the following factors (para 22) ?If there was, in fact, the divergence between ennelly and Macken 1 that the Commissioner suggests, I think it would have been inconceivable that Murray CJ and Hardiman 1 would have agreed with both judgments. Moreover, the comments of Macken J. in this regard were signi?cant, considerate, and deliberate. This was not a question of an over?broad aside to be dismissed as mere obiter Mr Justice Birmingham then identi?ed that the exemption provisions deal with a wide range of factual scenarios and legal tests and proceeded directly from that observation to state (para 25) ?nd myself in agreement with the views expressed by Macken - in Rotunda, and 1 may add I believe also in agreement with the views of the other members of the Supreme Court With the greatest of respect, the Court of Appeal is not entitled to elevate an obiter dictum (or as Ms Justice Macken helpfully described them ?wholly obiter?) into the ratio of the Court merely because the plurality of the Court did not expressly dissent from those obiter remarks. As the comments of Ms Justice Macken were ?wholly obiter? there was simply no obligation on the plurality of the Court to dissent from those remarks. Mr Sheridan can identify no case in which an avowedly obiter dicta has been dissented from by a concurring judge. Still less, no other case can be identi?ed where an obiter dicta has, by virtue of the absence of a dissent from a plurality, come to be 10 183 21. regarded as the ratio, particularly in circumstances when they were prefaced by Ms Justice Macken in the following manner: ?On this otherwise important point, no formal decision was made by either the Commissioner or the learned High Court judge, and there was, in the circumstances, no detailed argument on that issue, before this Court. It is, therefore, inappropriate to make any de?nitive findings on My comments on how I would have approached the exercise had it been necessary to do so, are therefore wholly obiter, and must be considered from such perspective. This is all the more the case where there is, at least on some level, an incompatibility between the views of Mr Justice Fennelly and Ms Justice Macken. The former relied upon the presence of the presumption in section 34 as powerful evidence of the underlying purpose of the Act and assumed that the presumption applied to exempt records. Ms Justice Macken on the other hand expressed obiter doubts about the applicability of the presumption to exempt records. Without prejudice to the fact that Ms Justice Macken?s comments were: 0 provisional, - ?wholly obiter? and therefore cannot be ascribed to either of the concurring judges, inconsistent with the purposes of the Act as identi?ed by Mr Justice Fennelly, and, inconsistent with the statutory text, by de?nition therefore the Court of Appeal erred in elevating Ms Justice Macken?s views as representative of those of the Supreme Court. In circumstances Where that purported elevation was the only element relied upon by the Court of Appeal, it is submitted that the analysis of the Honourable Cou1t below is wrong in law, destructive of the purposes of the Act and should not be followed. ll 184 22. This Honourable Court should instead adopt the approach of Mr Justice Noonan. It is an approach that is consistent with the statutory text, consistent with the purposes of the Act and consistent with every decision of the Superior Courts prior to the decision under appeal. (1) Comparative material 23. 24. 25. In considering the relative merits of the approach adopted by the Court of Appeal and the High Court, it is instructive to brie?y identify comparable FOI regimes. In Scotland the Freedom of Information (Scotland) Act 2002 does not contain any speci?c presumption such as that contained in section 22(12) of the FOIA. However, in Scottish Ministers Information Commissioner 2007 SCLR 253 the Court of Session held that as Section 1(1) of the Act of 2002 provides that person who requests information from a Scottish public authority which holds it is entitled to be given it by the authority" and as the exemption provisions were carved out from this general entitlement it followed that (para 12) ?As each is an exemption to a general entitlement it is for the public authority relying on it to demonstrate that the exemption is engaged Section 55D of the Australian federal Freedom of Information Act 1982 operates in like manner to the presumption of non-justification. It requires, in essence, that the Minister or agency holding a document and purporting to refuse a decision has the onus of satisfying the Australian Information Commissioner that the decision is justi?ed. As with section 22(12)b of the FOIA this applies to decision of the Australian Information Commissioner. Section 61 of the Act clari?es that the same onus rests on the Minister if an appeal is sought to the Administrative Tribunal, the appellate body in the Australian system. In both cases the presumption of justification lies on the public body in respect of all records. 12 185 26. In Canada section 48 of the federal Freedom of Information Act also of 1982 speci?es that upon appeal to the Federal Courts, the burden of justi?cation rests on the Minister. This has been interpreted by the Canadian Courts as imposing an obligation that the body seeking to claim the bene?t of an exemption may only do so on the most cogent basis (Rubin Canada (Canadian Mortgage and Housing Corp [1989] I FC 289 (CA). 27. In South Africa Section 81(3) of the Promotion of Access to Information Act 2000 places the burden of proof for a party asserting a right to refuse access to information rests on that party. In President of the Republic of South Africa Others Media 2012 (2) SA 50 (CC) Ngcobo CI for the Constitutional Court identified that FOI was a critical part of securing constitutional rights as (para 11) ?It is impossible to hold accountable a government that operates in secrecy He then considered the rationale behind the presumption in section 81(3)(emphasis added): ?The imposition of the evidentiary burden of showing that a record is exempt ??om disclosure on the holder of information is understandable. 0 place the burden of showing that a record is not exempt from disclosure on the requesting party would be manifestly unfair and contrary to the spirit read in the light of section 32 of the Constitution. This is because the requester of information has no access to the contents of the record sought and is therefore unable to establish that it is not exempt from disclosure under the Act. By contrast, the holder of information has access to the contents of the record sought and is able to establish whether or not it is protected from disclosure under one or more of the exemptions contained in Chapter 4. Hence section 81(3) provides that the evidentiary burden rests with the holder of information and not with the requester. 28. The Chief Justice then identi?ed that this approach was consistent with that adopted in the United States, Canada and Australia before summarising (para 25)(emphasis added): 13 186 ?The question is not whether the best evidence to justi?r refusal has been provided, but whether the information provided is su?icient for a court to conclude, on the probabilities, that the record falls within the exemption claimed If it does, then the state has discharged its burden under section 81(3). If it does not, and the state has not given any indication that it is unable to discharge its burden because to do so would require it to reveal the very information for which protection from disclosure is sought, then the state has only itself to blame. 29. In this regard Mr Sheridan recalls that despite numerous opportunities to do so neither the Minister nor E?Net provided any cogent reasons upon which the Commissioner could conclude that the decision to refuse Mr Sheridan?s request was justi?ed. 30. The comparative examples are each consistent with the interpretation being urged by the Commissioner and Mr Sheridan (and the approach adopted by Mr Justice Noonan in the Honourable Court below). 31. Although there are semantic differences each of them require the public authority seeking to rely on an exemption to justify that reliance. Signi?cantly, for present purposes it is clear that this presumption of non? justi?cation/requirement for justi?cation applies to all decisions being made pursuant to the respective national Freedom of Information Acts. Section 22(12)(b), as interpreted prior to the decision of the Court of Appeal, is therefore entirely consistent with the approach adopted in the United Kingdom, Canada, Australia and South Africa. Fundamental Rights 32. The FOIA encompasses and/or is required to be read in the light of Article 10 of the European Convention of Human Rights and article 40.6. 1?.i of the Constitution. In Magyar Helsinki Hungary (Case 1803 0-1 I) an NGO sought access to the names of Defence Counsel in certain speci?c domestic proceedings for the purposes of improving transparency in the 14 187 33. 34. 35. Hungarian legal aid system. The NGO, having been unsuccessful before the domestic courts, appealed that decision to the European Court of Human Rights on the basis that the refusal was contrary to Article 10 of the Convention. In ?nding for the applicant, the Grand Chamber identi?ed that Article 10 ECHR did not speci?cally include a right to seek information. It also identi?ed that the had two contrary strands of jurisprudence as to whether Article 10 extended to that principle or not. The held (para 156) that Article 10 was engaged ?where access to the information is instrumental for the individual ?5 exercise of his or her right to ?'eedom of expression, in particular ?the freedom to receive and impart information and where its denial constitutes an interference with that right. The Court placed emphasis (para 158 165) as to whether the information sought was for journalistic purposes and (161) whether the information being sought would provide ?transparency on the manner of conduct of public a?airs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large. The held that denial of the information sought struck to the heart of the Article 10 rights. It is also worth observing that this Court in Irish Times Limited Ireland ([1998] 1 IR 359 at para 405) pointed out that article 10 ECHR by granting a right to receive information made explicit a right that is implicit in Article 40.6.1o of our Constitution. The denial of Mr Sheridan?s access request constitutes a denial of his fundamental right to receive information. The information sought is clearly in the public interest and was so-identi?ed by the Commissioner in his decision. Mr Sheridan, a journalist, proposes to use if for journalistic purposes of national importance. It is submitted that this Court must read the FOIA consistently with Mr Sheridan?s Article 10 rights pursuant to section 2 of the European Convention on Human Rights Act 2003 and Article 40.6.1?.i of the Constitution. 15 188 36. Bearing this context to the fore, Mr Sheridan now addresses the legal issues raised: Presumption under s. 22(12)(b) 37. 38. 39. 40. 41. The Minister made, and the Court of Appeal agreed with, the novel argument that section 22(12)(b) does not apply to exemption provisions in the Act. No statutory basis is advanced by the Minister, or was identi?ed by the Court of Appeal, to substantiate either element of its argument. There are a number of obvious dif?culties with the Minister?s arguments; most obviously and fatally for the Minister?s case, the Act itself includes no such distinction between access requests for personal information and access requests for exempt records. The shoulder note to section 22 states ?Review by Commissioner of decisions?. Section 22(1) of the section then goes on to specify those decisions to which the generality of section 22 applies and those to which it doesn?t. The section states that it applies, inter alia, to decisions taken pursuant to section 21 of the Act those decisions which have been reviewed internally and in respect of which an appeal has been received by the Commissioner). The decision the subject matter of these proceedings was a decision which was subject to internal review by the Minister and therefore a decision to which sections 21 and 22 of the Act apply. There is therefore nothing in the general structure of section 22 which gives any support to the Minister?s contention in fact quite the opposite. The section specifies in detail the scope of its application. Having clearly directed its mind to the scope of section 22, if the Oireachtas had intended to dis?apply the effect of section 22 from exempt records (or the public interest test couched within those sections) as contended by the Minister, it presumably would have done so. The point can be put higher still if the Oireachtas had intended that the presumption contained in section 22 would not apply to exempt records it had 16 189 42. 43. 44. the perfect opportunity to specify same in the 2014 Act in light of Ms Justice Macken?s comments. It chose not to do so and instead re?enacted the section verbatim. As identi?ed by Mr Justice Noonan the Oireachtas has therefore twice passed Freedom of Information legislation which are absolutely explicit that the presumption of non-justi?cation disputed by the Minister applies to all decisions of the Commissioner including those involving exempt records. Secondly, an alternative way of approaching the issue is that the interpretation urged by the Minister necessarily involves the implication of words into the Act. In order for the Minister?s approach to be correct, the bolded words must be read into the section: With the exception of requests for records to which Part 4 applies, a decision to refuse to grant an 0] request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justi?ed. The approach being urged upon this Honourable Court by the Minister therefore: a) con?icts primafacie with the clear text (and purpose) of the FOIA, and, b) is entirely dependent upon the implication of words into the Act. There is no principle of statutory interpretation which would allow this Honourable Court to look past the unambiguous meaning of section 22(12)(b), still less any such principle which would allow that clear meaning to be replaced by an approach that requires, at a minimum, radical additions to be read into the statutory section. Thirdly, it appears that the Minister (but not the Court of Appeal) now accepts that what Ms Justice Macken said was entirely obiter. This is made clear in both the course of Ms Justice Macken?s decision and, helpfully, in the head? note to the decision in the Irish Reports. As a matter of ?rst principles, and without prejudice to the points made above, an obiter passage manifestly does 17 190 45. 46. 47. not bind this Honourable Court. For the reasons identi?ed in the Commissioner?s submissions, the Court of Appeal misconstrued the standing and status of Ms Justice Macken?s observations. not only is the passage relied upon by the Minister clearly obiter the Minister has overlooked a passage by Mr Justice Fennelly (with whom Mr Justice Hardiman and Chief Justice Murray equally agreed) which both reaches the opposite conclusion and which formed part of the ratio decidendi (para 87 onwards). Signi?cantly, this position is consistent with that adopted by Mr Justice Cross in West Wood Club discussed above. It is also consistent with the approach adopted by the Supreme Court in Sheedy Information Commissioner [2005] 235. Mr Justice Kearns held (para 78) that the Department which proposed to refuse access to an exempt record bore the burden of justi?cation ?In my view the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation of non co-operation from teaching sta?? could never constitute su??icient evidence in this It is also consistent with the decision of Mr Justice Quirke in Gannon Information Commissioner [2006] IEHC 17 who held that the Information Commissioner had ?correctly applied a presumption of non-justification to the decision of the Board not to grant access to the documents sought? . The records in question in that case fell within the exempt records categories pursuant to the 1997 Act. and notwithstanding all of the above it is not apparent that the Court of Appeal grasped the context of Ms Justice Macken?s remarks. Her difficulty was clearly a concern as to a head could justify a refusal and she cites the example of the exemption provided for Government papers. She goes on to note that all that could be adduced in that situation is a record of those papers 18 191 being submitted to government and wondered aloud what better evidence could be required under section 34(12). 48. It is clear that Ms Justice Macken was expressing nothing more than a reservation as to how heads of F01 bodies could ever satisfy the evidential section 22(12)(b) burden in the case of class exemptions (such as government papers) but did not express any reservation in respect of harm based exemptions (such as commercial con?dentiality) which is the focus of these proceedings. Whatever evidential considerations arose in that particular case or might arise in the example given by Ms Justice Macken, they clearly do not arise in the context of the instant case. As detailed in some length in the Commissioner?s submissions both the Minister and eNet were given ample opportunity to adduce evidence as to why release of the records sought should be refused on the grounds of either commercial sensitivity or con?dentiality and both, in fact, exercised that right, however inadequately. 49. The Minister?s real dif?culty would appear to be not that they could not or should not have had the section 22(12) burden imposed upon them the Minister?s actual objection is that they failed to discharge that burden to the satisfaction of the Commissioner. In other words the Minister was aware of precisely what type of information was required to justify a refusal of access to records but chose to respond in the most laconic and perfunctory fashion possible. That failure cannot now be undone by parsing the application of the section 22(12) presumption into an error of law on the part of the Commissioner by quoting obiter passages from Rotunda or otherwise. Does the presumption apply to the public interest test? 50. If, as now seems irrefutable, the section 22(12)(b) applies Part determinations by the Commissioner, the Minister must but cannot identify a statutory basis by virtue of which it applies to subsection 36(1) and not 36(3). As above the Minister?s argument cannot survive first contact with the statutory section. 19 192 51. The Act reads that the presumption shall apply to ?a decision to refuse to grant an 0] request?. The Act is therefore perfectly clear in terms of its scope. The contended for contrary interpretation would require this Honourable Court to; a) Ignore the fact that a request only falls to be refused pursuant to (in this case) section 36 after it has undergone the public interest balancing consideration and that there simply cannot be a decision to refuse under section 36(1), and, b) Read initial words into the section such that the presumption does not apply to exempt records, and, c) Read further words into the section such that the presumption speci?cally does not apply to public interest considerations, and, (1) Adopt an interpretation which is, in any event, clearly contrary to the approach adopted by Mr Justice ennelly in Rotunda and Mr Justice Cross in Westwood Information Commissioner [2015] 1 IR 489, and, e) Adopt an interpretation which is clearly, as ably identified by the Commissioner entirely contrary to the entire purpose of the Act as repeatedly identi?ed by each of the Superior Courts. Section 11(7) 52. Mr Sheridan makes a discreet observation in passing. Although not having the bene?t of sight of the Minister?s submissions, the Minister relied in the Court below on section 11(7) of the FOIA as allegedly supporting its interpretation that the presumption either does not apply at all to Part records or specifically does not apply to the public interest balancing test. This is not 20 193 53. Section 11(7) simply clari?es that there shall be no right of access Via section 1 1 (?Nothing in this to an otherwise exempt record. In other-words, once a decision has been made to refuse access to a record under one of the exemption provisions the section makes clear that one cannot pray the section 11 right of access in aid to otherwise secure access to the record. The sub- section simply says nothing about the application of the presumption to exempt records. Appeal on a point of law the applicable test 54. 55. 56. 57. In Mr Sheridan?s View the appropriate test to be applied on an appeal on a point of law is a matter largely for the Commissioner to address. However there is in fact no disparity between the approach urged by the Commissioner and the Minister. The Minister?s fundamental objection is that it alleges that Mr Justice Noonan erred in applying exclusively judicially review principles to an appeal on a point of law. The Court of Appeal notably rejected this analysis. Mr Sheridan adopts the submissions of the Commissioner and makes two additional observations; Notably, the Minister identi?ed (at paragraph 16 of its submissions before the High Court) exactly the same principles as those quoted by Mr Justice Noonan as the applicable principles in the case of an appeal on a point of law i.e. those identified by Mr Justice Kearns in Sheedy Information Commissioner [2005] 2 IR 272 (quoting Deely 12 Information Commissioner. Ironically, the Minister?s argument, accepted by the Court of Appeal, appears to be that Mr Justice Noonan erred in adopting a legal approach that it itself urged on the Court below. Secondly, the Minister falls into further error when it extracts the decision of Mr Justice Noonan in McKiZZen Information Commissioner [2016] IEHC 27 to the effect that an appeal on a point of law is indistinguishable from that to be applied when an appeal is taken on a point of law. However, as'is 21 194 immediately clear from a reading of paragraphs 32-37 of Mr Justice Noonan?s decision the Court was simply identifying the relevant principles as identi?ed in the case-law including exactly the principle which the Minister contends is either missing or overlooked that errors of law will result in a decision being set aside on an appeal on a point of law. 58. It is clear from those paragraphs that Mr Justice Noonan accurately identi?ed that; a) no deference attached to the Commissioner?s interpretation of the law, b) that if a legal error had occurred that would be reason to set aside the decision, and, c) there was in fact no legal error, and, d) that a high degree of deference attached to the Commissioner?s decision when it came to the question of considering the balance to be applied in the public interest test. 59. Notably, while the Minister (erroneously) criticises the identi?cation of the relevant principles by the Court below, nowhere does the Minister identify any actual error of application of those principles by Mr Justice Noonan. Where the Minister has failed to identify any error in either the applicable principles speci?ed by the Court below, let alone any concrete error in the application of those principles this head of objection simply does not arise for consideration by this Honourable Court. The comments by the Court of Appeal (at para 12) that they too could identify no error are apposite. The Commissioner?s interpretation of Section 36 of the FOIA 60. It is common case that the Commissioner deemed the requested records as constituting commercially sensitive information for the purposes of section The only issue before this Honourable Court therefore is whether the Commissioner?s subsequent decision to decide that the public interest favoured release for the purposes of section 36(3) constituted an error of law? 22 195 61. 62. 63. 64. This section reads; 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 request. Section 38 is a provision which applies in a limited number of instances. It requires that where the head of an F01 body has determined that material is commercially sensitive but that that the public interest test on balance requires disclosure the head is required to consult with the persons who gave the information to the F01 body or to whom the information relates. The head must take into account the results of such a consultation before making a decision to release or not. Signi?cantly, the Minister was of the View that there was a ?public interest in ensuring that state and local government agencies are accountable to the public for the decisions they make and related expenditure?. Having accepted that there was a public interest in disclosure the Minister then invoked the section 38 procedure and engaged in further consultations with eNet. It was only in the course of that consultation that the Minister was convinced to change its mind. Mr Sheridan submits that this exchange clari?es the reality of the Minister?s point. The Minister was originally of the View that the public interest favoured disclosure and was persuaded otherwise by eNet, the objection it mounts here is no more than that the Commissioner reached a different view on the same facts. There simply is no point of law in that objection and the Commissioner is eminently entitled to take whatever View it wishes on the facts before it. Faced with this difficulty the Minister is forced to make the argument that the identi?cation of the Commissioner of the requirement for ?exceptional circumstances before access would be refused involved both in a species of statutory interpretation. 23 196 65. 66. This argument fails in limine. On the contrary, the Commissioner identi?ed the type of circumstances which would have to be present before access to a record could be refused. In doing so it is clear that they did so in a manner consistent with the default presumptions under the Act. Mr Justice Noonan parsed this in the following terms (para 49 onwards)(ernphasis added); he provisions of the Act to which I have referred make clear that all information is disclosable subject to exceptions. By de?nition therefore, exceptional circumstances must exist to justi?/ the refusal. In this case, the onus of justification 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 noted (at p. 594) he 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 justi?ed 50. Similar views were expressed by O?Donovan J. in Minister forA griculture Food v. the Information Commissioner [2000] 1 IR. 309 at p. 319 where he said: 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, I 997, 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 exemplified by the provision of s. 34(12) of the Act which provides that a decision to refuse to grant access to information sought shall be presumed not to have been justified until the contrary is shown. 24 197 67. 68. 69. 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. In other-?words Mr Justice Noonan identi?ed the test of exceptional circumstances as re?ective of the default presumption contained in the Act which is one of the greatest possible access and one of release. Refusals of access to information are the exception to that rule and, by de?nition, require an exceptional circumstance in order to depart from that very clear statutory rule. Mr Justice Clarke (as he then was) in The Information Commissioner [2009] IEHC 574 held: ?43. In the light of those decisions it is clear that the intention of the Oireachtas was that the exemptions allowed by Part interpreted restrictively and applied sparingly. If the exemptions are a?orded too wide an interpretation, the refusal of access could become the rule instead of the exception and this would clearly frustrate the primary objectives other-words, it is submitted that not only was the test adopted by the Commissioner in these proceedings entirely consistent with the purpose of the Act, it is squarely and exactly on all fours with the repeated jurisprudence of this Honourable Court put simply if the Act itself regards the default presumption as release and all deviations from that as exemptions to the general rule, it is entirely unremarkable that exceptional circumstances are required to transition a decision from the default presumption to one of the exceptions to that rule. 25 198 70. 71. 72. The Minister makes the point that the insertion of the requirement for ?exceptional circumstances? has ?the effect of undermining the purpose and objective of s3 6 which is to protect third parties from the release of commercially sensitive information (para 86). The Minister is clearly correct insofar as section 36 does include such an objective. However it is important to bear in mind that section 36(3) expressly provides for the release of exactly that commercially sensitive information to the public at large if the public interest requires it. The purpose of section 36(3) is therefore to provide for the release of commercially sensitive information if the public interest requires it, even if that occasions commercial prejudice. Section 36 is simply not con?ned to considerations of commercial sensitivity or the harm that may be caused by the release of a document on a commercial entity. It is aweoncerned with the necessity to release documents in the public interest and provides a speci?c mechanism to allow that public interest in transparency to trump any considerations of commercial sensitivity which may arise. Finally, in this regard it is highly signi?cant that Minister failed to make any substantive observations as to the alleged commercial sensitivity or the speci?c public interest favouring non-release at any point in the proceedings before the Commissioner. Instead it made submissions on these points in the most bland and generic terms. This failure was specifically highlighted by the Commissioner in the course of its decision (page ?Furthermore neither the Department nor enet identified for this O?ice 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, Cross 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 26 199 73. It is not clear how the Minister envisaged that the Commissioner could exercise its discretion in favour of non?release under section 36(3) when the Minister had neglected to make a substantive submission. Totally Undermine 74. 75. 76. The second broad argument made by the Minister is that the Commissioner allegedly erred in law in requiring that the Minister demonstrate that releasing the contract would totally undermine eNet?s business. The Minister appears to identify this as the threshold applied generally by the Commissioner. The Court of Appeal accepted this analysis (para 33 34 of its decision) and noted that ?There is no requirement that the business of a company engaging with the State should be totally undermined It seems unlikely in the extreme that the Oireachtas would ever have contemplated setting the bar at such a level. In other words the Court of Appeal appeared to be of the View that this was the test applied by the Commissioner. With respect, this is not correct. The observation seized upon by the Minister and the Court of Appeal arose in the narrow context of whether release of the records sought would bene?t future tenderers. The Commissioner reasonably concluded that it would not, as the records sought related to a particular phase of the operation of the asset and that future tenders would in any event be different. The Commissioner then turned to the fact that neither the Minister nor eNet had put any speci?c information before the Commissioner which identi?ed speci?c prejudice which would ?ow from nonwrelease. More fundamentally, it was entirely reasonable for the Commissioner to identify the type of information it required from the Minister by reference to its previous decision. 77. As eloquently identified by the Commissioner (at paras 79 80 of their submissions) the reference to undermining arose in the context of the public interest balance test for the purposes of section 36(3). That test is entirely silent on the factors which are to be considered on both sides of the public element 27 200 assessment. The Commissioner must be entitled to identify the types of evidence it requires in order to displace the underlying assumption of release in the Act without that being characterised as an error of law. Bare statutory language has to be developed in order to identify the type of prejudice required before access to documents will be refused. Thus and by analogy in R(Lord) Secretary of State for the Home Department [2003] EWHC 2073 at [106] the UK High Court considered that ?likely? for the purposes of Data Protection legislation connotes ?a degree of probability where there is a signi?cant and weighty chance of prejudice to the identi?ed public interests? which de?nition has since been adopted by the UK Information Tribunal and applied across the Act (John Conner Press Associates 1) Information Commissioner 25?? January 2006). The Section 35 issue 78. 79. 80. The third substantive argument made by the Minister relates to section 35 of the FOIA. In respect of section 35(2) Mr Sheridan supports and adopts the submission made by the Commissioner. The Minister, with the greatest respect, does not appear to have accurately grasped the legislative structure of section 35. Section 35(1) and section 35(2) are not sequential in the way section 34(1) and (3) are. On the contrary, if section 35(2) is engaged it dis?applies section 35(1). As a matter of first principles the Minister was quite wrong to argue in the Honourable Courts below that the Commissioner erred in considering matters section 35(2) without making a speci?c ?nding in respect of section 35(1) As is quite clear from the decision the Commissioner considered the application of section 35(1) only in the abstract. As a matter of law once section 35(2) was deemed to apply then section 35(1) could not. The net and correct question is therefore whether the Commissioner was entitled to conclude that section 35(2) applied. Section 35(2) states: 28 201 81. 82. 83. 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 sta?o? an body or a service provider) in the course of the peiformance 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 0] body or head or a director, or member of the sta?of an 0] body or of such a service provider. This section was correctly identi?ed by Mr Justice Noonan (at para 44) as ?unambiguous?. The purpose of this section is clear. Neither F01 bodies (such as the Minister) nor service providers (such as eNet) are entitled to oust the operation of the Act on the basis of a duty of con?dence owed as between themselves. The only way that the operation of the Act can be ousted if disclosure would lead to a breach of the duty of con?dence owed to a third party other than either the F01 body or the service provider. There is no third party in this case and neither the Minister nor enet identi?ed any duty of con?dence owed to a third party at any point in the course of their submissions. The whole purpose of the Act would be set at nought if, as the Minister contends for, F01 bodies could simply and unilaterally create a duty of con?dence between themselves and service providers so as to avoid the operation of the Act. Section 35(2) was enacted by the Oireachtas in order to avoid the clear and deleterious consequences of the interpretation advanced by the Minister. This was accurately summarised by the Court below (para 44); ?In general, a Freedom of Information body and a party providing services to such body cannot rely on a. con?dentiality 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. Section 35(2) was enacted by the Oireachtas precisely in order to avoid the clear and deleterious consequences of the interpretation advanced by the Minister. With respect to the Minister, the meaning and purpose of the section 29 202 are clear and there is no warrant for the semantic gymnastics relied upon by the Minister (at para 120-122) to ground its suggested interpretation of the section. 84. As it happens the Commissioner went on to consider the application of section 35(1) on the basis both that the Minister had made its decision under its auspices and out of an abundance of caution (?Therefore even if section 35(2) does not operate to disapply section 3 I would find that section 3 5(1) does not apply? (page 9, para 85. Section 35(l)(b) requires that a head shall refuse a request if: disclosure of the information concerned would constitute a breach of a duty of con?dence provided for by a provision ofan agreement or enactment (other than a provision speci?ed in column (3) in Part I or 2 of Schedule 3 of an enactment speci?ed in that Schedule) or otherwise by law. 86. The Commissioner found that there was no breach of a duty of con?dence as Clause 32 of the contract expressly subordinated itself to the Act and this was recognised by eNet in the course of its submissions to the Minister. Indeed the Commissioner observed (page 8) ?Instead, enet submitted that its inclusion indicated a mutual understanding of the commercially sensitive nature of the fourth records and the likely potential harm arising as a result of commercially sensitive and/or con?dential information In other words the Commissioner reached the absolutely unremarkable conclusion that there was no breach of confidence involved in releasing the records because neither the contract nor the contracting parties expressed any belief that the contract was confidential for the purposes of the Act. 87. With the greatest respect to the Minister therefore it is difficult to identify the actual objection to the decision of the Commissioner. Insofar as it can be understood the Minister appears to be making the arguments that; 30 203 88. 89. 90. a) There is some (unidenti?ed) legal dif?culty with the Commissioner?s approach to the con?dentiality clause in the contract signed between the Minister and eNet, and, b) That the approach of the Commissioner somehow ?compels the absurd or impossible? because public bodies will no longer be able to rely on con?dentiality agreements. There is no substance in either objection. We further know that the contract did not oust the operation of the FOIA because, helpfully, clause 32(2) of contract explicitly makes it clear that the duty of con?dentiality contained in the contract is subject to the requirements of the FOIA. Therefore none of the colourful consequences of impossibility or absurdity identi?ed by the Minister can possibly arise in either the abstract or in the decision the subject matter of these proceedings. In simple terms the Minister signed a contract with eNet. That contract recognised that both parties to the contract bore an inter partes duty of con?dentiality and a duty of con?dentiality to the world at large. That contract also recognised and made that duty of con?dentiality is subject to the requirements of the Act. Given the impossibility of ousting the operation of an Act of the Oireachtas that duty of con?dentiality remained subject to the Act whether clause 32(2) was included or not. When distilled into its basic elements the Minister?s argument appears to be that an in?rmity attaches to the Commissioner?s decision, because the Commissioner did not con?ne and conclude its section 35 analysis on the basis of clause 31(1) of the contract, where that clause was itself rendered subject to the requirements of the Act. This is, with the greatest possible respect, at best an absurd argument. At worst if accepted it would set the entire operation of the Act at nought as if the Minister is correct all public authorities and private parties contracting with the State could simply oust the operation of the Act by including a con?dentiality clause. This was accurately identi?ed by the High Court below(para 47); 3 1 204 ?It would be somewhat surprising if the laudable objectives identi?ed by the Act itself could be defeated by the simple expedient of inserting confidentiality 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 Conclusion 91. The Minister is seeking to restrain the release of documentation related to the operation of a public asset by a third party for pro?t. The Minister failed to identify any cogent prejudice which could result from the release of that information before the Commissioner or since. The Minister has equally failed to identify any errors of law in the decision of the Commissioner. Any arguments it has marshalled are based on strained or clearly incorrect interpretations of the Act, which interpretations are contrary to the clear text and pulpose of the Act as repeatedly identi?ed and upheld by the Superior Courts. John Kenny BL 27th September 2019 Word Count 9849 32 205 THE SUPREME COURT 2018/394 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 BETWEEN: MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES Appellant/Respondent ?and- THE OFFICE OF THE INFORMATION COMMISSIONER Appellant/Respondent -and- GAVIN SHERIDAN First Notice Party ~and? E-NASC EIREANN TEORANTA t/a ENET Second Notice Party CORRECTED OUTLINE LEGAL SUBMISSIONS OF THE FIRST NOTICE PARTY 33 206 207