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A: AP: IE20 f7:000256·..~...-·~
2015 No. 394 MCA
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014
Between:THE MINISTER FOR COMMUNICATIONS ENERGY AND NATURAL
RESOURCES
Respondent
AND
THE INFORMATION COMMISSIONER
Appellant
AND
GAVIN SHERIDAN
First Notice Party
AND
E-NASC EIREANN TEO RANTA (trading as cnet)
Second Notice Party
OUTLINE LEGAL SUBMISSIONS OF THE RESPONDENT ("the Minister")
Contents
BACKGROUND
(I} THE MANS NETWORK.
(II) THE FOi REQUEST
APPEAL
I NATURE OF AN APPEAL ON A POINT OF LAW
II PRESUMPTION UNDER S. 22(12){8)
RAISING THE LEGAL INTERPRETATION BEFORE THE COMMISSIONER
(Ill) SECTION 36
STATUTORY INTERPRETATION
NO NEED TO SHOW "EXCEPTIONAL CIRCUMSTANCES"
TOTALLY UNDERMINE TEST
LIMITED CONSIDERATION OF TRANSPARENCY
RIGHT OF ACCESS BEGS THE QUESTION
SECTION 22(12)(9) ONUS· AGAIN
PREVIOUS ore DECISIONS
{IV) SECTION 35 - DUTY OF CONFIDENCE
SECTION 35(2)
CONCLUSION

2
2
2

s
6
11
18
21

24

25
27
30
30
30

31
33

35
37

 Background
(i) The MANS Network.

1. The Metropolitan Area Networks (MANs) were first developed under the National
Development Plan 2000-2006 for the Irish Government as part of the Regional
Broadband Programme. Following a competitive tender, the Minister appointed
the Second Notice Party, e-Nasc Eireann Teoranta (hereinafter "enet"), in 2004 as
a Management Service Entity ("MSE") to manage, maintain, market and operate
the MANs (Phase I). By way of second competitive tender, enet again succeeded
m tencler-ano was-appomtecfm~~o manage, ma1fffa1n, maiKec ancr-o-peraie~ -e
MANs (Phase II). In the first tender competition, three tenderers competed for the
contract. In the second tender competition, one tenderer competed.

2. Enet provides fibre-based telecommunications services and products to authorised
telecommunications service operators on a wholesale, open-access and
commercial basis via the state-owned Metropolitan Area Networks.

The

Telecommunications operators utilise these services on the MANs to provide
downstream services to their customers.

3. Maximum prices are advertised publicly by enet to the market. These prices do
not necessarily reflect individual, commercially-negotiated prices, e.g. prices
provided to or obtained by individual service providers in respect of specific
connectivity between specified locations, volume discounts, length of contract,
etc.

4. There are other competing infrastructures and entities to the MANs operating in
the Irish Market. enet, therefore is in significant competition with other wholesale
providers such that enet's customers could choose to obtain connectivity through
these other operators.

(ii) The FOi Request

5. In January 2015 the First Notice Party made a request under the Freedom of
Information Act 2014 (hereinafter "the 2014 Act") to the Minister for access to
" ... any contracts from 2009 between the department and enet in relation to the

2

 provision of broadband services via Metropolitan Area Networks" (fourth record).
The fourth record is the only record now in issue in this appeal.

6. In seeking enet's views the Minister had formed a preliminary view that on
balance the pubic interest was served by releasing the records sought, as required
by section 38; see letter of January 14th 2015.

7. Having considered eNet's submission of February 3rd 201 S, which concluded that
it considered a 'real risk" of commercial harm if disclosure occurred, the Minister
informed the First Notice Party that it was declining the request under section
3S(l)(b) (confidentiality) and section 36(1) (commercial sensitivity). The Minister
considered that a duty of confidence existed between the parties to the concession
agreements, and that to release them would be a breach of that duty. The Minister
also considered that the release of the Concession Agreements could have a
negative impact on the ability of enet to continue the business of managing the
MANs on behalf of the State in a competitive environment and/or could prejudice
the competitive position of enet in the conduct of its business.

8. The first Notice Party appealed to the Information Commissioner.

9. By email of 26 May 2015, the Minister detailed to the Commissioner the
reasoning behind its decision not to disclose the relevant records. In considering
the public interest balancing test as mandated by the 20 I 4 Act, the Minister
considered the following factors in favour of the release of the fourth record:

(i)

enhancing the accountability of government;

(ii)

ensuring that state and local government agencies are accountable to
the public for their decisions and expenditure.

10. The Minister balanced the above factors against the following favouring nondisclosure:
(i)

enet should be able to carry out its business with the State, its
customers and its suppliers in an effective manner without being
impeded.

3

 (ii)

Clause 32 provided that all the parties to the Concession Agreement
keep confidential the Agreement.

(iii)

There was no overriding public interest for the release of the
information which would constitute a breach of confidence.

(iv)

enet is a private company managing assets on behalf of the State on a
commercial basis. Any release of contractual or financial information
could prejudice its competitive position.

(v)

The State's position in comparable future contracts could be seriously
undermined if potential bidders were aware that commercial
information could be released. This could cause serious harm to the
State's ability to attract bidders for infrastructure projects.

(vi)

Third Party consideration - enet produced a strong case for the
information not to be released.

11. In the impugned Decision of the Minister, at paragraph 4, additional factors were
set out, including that the release: "could have a negative impact on the ability of

enel to continue the business of managing the MANs on beha(f of the State in a
competitive environment and could result in malerial financial loss to the
company." (This was a quote from the Minister's letter to Mr Sheridan of
16th February 2015.)
And at paragraph 5: " ... enel 's competitors could leverage the il?formation in the

contract to gain competitive advantage over enet in the market ... releasing the
contract would penalise enet for transacting business with the Stale and could
discourage future potential bidders. "

12. At page 5 enet's submissions to the Commissioner were set out, including that:
" ... although ii cannot be certain that releasing the contract would cause it

financial harm, ii believes that it would suffer substantial losses. II has identified
two types ofharm whic:h ii c:uuld incur. "

13. The Commissioner made his decision on 30 November 2015. In its decision the
Commissioner inter alia directed the release of the fourth record, with the
exception of certain paragraphs already in the public domain.

4

 14. There are a number of features of the decision not strictly gennane to the issues
raised herein, but which are noteworthy. Firstly, the decision was made hopelessly
beyond the time pennitted by section 22(3) of the 2014 Act. No explanation for
this has been provided by the Commissioner.

15. At page 4, the Commissioner recorded that he should consider confidentiality and
commercial sensitivity as if this was some kind of concession. Both issues were
central to the Minister's decision.

16. In considering whether the

records were commercially sensitive, the

Commissioner noted his view that the standard of proof in relation to section 36( I)
(b) was not as onerous as that for paragraph (a). On page 5 of the Commissioner' s
decision this is referred to as being "considerably lower".

17. The Commissioner correctly noted that:

"The parties do not have to demonstrate that harm is certain to occur, but
merely that there is a possibility of it occurring. "

18. The relevance of pointing out a differential standard as between paragraphs (a)
and (b) of section 36( 1) is not obvious. Once either paragraph is satisfied, the
records are commercially sensitive according to the definition set by the
Oireachtas. It is noteworthy that, at this stage, the decision of the Commissioner
recognised that ensuing hann need not be certain.

Appeal
19. The appeal on a point of law under section 24 concerned whether the
Commissioner correctly interpreted and applied the relevant provisions. In brief, it
is asserted that the Commissioner erred in its interpretation:-

(i.)

by placing an onus on the Minister pursuant to section 22( 12)(b) where
the said section did not apply to exemptions,

(ii.)

by substituting his own tests and criteria for that enacted by the
Oireachtas in section 36(3), and

5

 (iii.)

by misinterpreting sections 35 and 36 in a manner which the
Oireachtas cannot have intended.

20. The High Court refused the appeal. The Court of Appeal allowed it. Both
judgements centred predominantly upon four issues addressed in the following
Order:-

{Q

The nature of an appeal on a point of law.

(ii)

The onus of proof pursuant to section 22( l 2)(b).

(iii)

The elements of the public interest test.

(iv)

The meaning of section 35(2).

I Nature of an appeal on a point of law
21. Though nowhere referenced in the submissions of the Commissioner, in the High
Court he specifically advocated the application of judicial review principles in the
appeal before the Court; see §51 of the Commissioner's submissions. In a volte

face before the Court of Appeal, the line of defence was to contrary effect: the
reference by the High Court judge to judicial review principles was not material to
the judgment and did not infiltrate the ratio of the decision on interpretation
issues.

22. The learned High Court judge was led into error by the Commissioner. At §29 of
the High Court judgement the Commissioner's submissions were effectively
recounted as:

"The correct test was whether or not there was no evidence to support the
Commissioner's decision and the onus was on the Minister IO establish this."

23. In considering the elements of the public interest test, the learned trial judge set
out that the Commissioner submitted that his test was one he was:

"30.... entitled to adopt within the margin of discretion afforded him by the
Act and it could not be disturbed unless it was so irrational as to fly in the face
offundamenta/ reason and common sense. " [Emphasis added.]

6

 24. The Commissioner advocated the adoption and application of O'Keeffe
irrationality test. That test has no bearing on the interpretation of statutes or an
appeal on a point of law. In so doing the Commissioner relied upon a previous a
decision of the same trial judge: McKillen v. The Jnformalion Commissioner
[2016] IEHC 27, which at the time of the hearing was under appeal to the Court of
Appeal (though later settled). The High Court adopted a highly deferential
approach to the Commissioner's decision and the Commissioner's urging.

25. While in the High Court it was argued that deference was required, in the Court of
Appeal it was argued that when determining the grounds of appeal no deference
was in fact shown by the learned Judge.

26. At paragraph 25(b) the learned High Court Judge suggested incorrectly that the
issue taken with the application of an "exceptional circumstances" test and of a
"totally undermined" test into section 36 were suggested to be "ultra vires the
Commissioner". In fact, the Grounds of Appeal and submissions were that the
interpretation adopted and applied by the Commissioner was wrong in law, not
that he acted ultra vires. The trial judge erroneously perceived it as a question of
whether it was intra vires the Commissioner to adopt the impugned interpretation.
As held in Sheedy v biformalion Commissioner [2005] 2 IR 272 an interpretation
is either correct or not; there is no role for deference by the High Court to an
administrative decision maker when it comes to the interpretation of statutes.

27. At paragraph 32 the learned High Court Judge commenced his discussion of "the
standard of review in an appeal on a point of law". The questions in this appeal
do not engage any question of a "the standard of review" as the appeal engaged
the question of whether the Commissioner's interpretation of the relevant
enactments was correct or not. At paragraph 33 he cited Killilea v the Information

Commissioner [2003] 2 IR 402 which concerned the exercise of a statutory
discretion to discontinue a review (see p.426 thereof) and not a question of
interpretation. At paragraph 35, Gannon v biformation Commission is cited, but in
that case the Appellant, a lay litigant, pursued grounds of irrationality. By quoting
from passages in cases which concern challenges to the finding of primary or
secondary facts, or which attack a decision based on the evidence before the

7

 Commissioner, the trial Judge erroneously arrived at the wrong conclusion in the
appeal before him. This is clear from paragraph 36 of his decision.

28. It is thus impossible to disagree with the views of the Court of Appeal at the
commencement of § 12, save that they may contain an element of the 'benefit of

!he doubl' being afforded to the learned trial judge, Bermingham P. held:-

"J 2. Reading the judgment of the High Court, I co,?fess lo having had

concerns that the Judge in the Court below was over-influenced by judicial
review concepls. "

29. There is no role for the interpretation of the enactment as being within the

'discretion' of the Commissioner, or his interpretation being intra or ultra vires or
being assessed by reference to the O'Keeffe formula. The High Court Judge erred
in so doing. A court is not called upon to assess the "reasonableness" of the
Commissioner's interpretation. The point was already determined by the Supreme
Court in the Sheedy v Information Commissioner [2005] 2 IR 272:

" ... ii would be obviously incorrect to apply exclusively iudicial revie·w
principles to matters of statlllory interpretation in the way that might he
appropriale to issues of fact. A legal interpretation of a statute is either
correct or incorrect and the essence of this case is to determine whether the
inlerpretation given first by the respondent and later by the High Court
(Gilligan .f.) to s. 53 of the Education Act 1998 was correct or otherwise".
[Emphasis added.]

30. The same point was made by O'Donnell J., in Revenue Commissioners v. O'Flynn

Construction Company [2011] IESC 47 at paragraph 49:

"There was some argument as to the standard of review to be applied
by the High Court and the Supreme Court on appeal in circumstances
where the section required the Revenue Commissioners and !he Appeal
Commissioners to be of an opinion. While in different circumstances
that issue might become central to the courts' delermination, it seems

8

 clear !hat here !he issue is one as to !he true inlerpretation of s. 86(3)
(b) and its application lo facts in this case, which are not in dispute.
Accordingly the issue is one of statuto,y interpretation, and therefore
an issue oflm11, and no question ofdeference to the findings of fact or
inferences drawn by either the Revenue Commissioners or the Appeal
Commissioners arises. ''

31. The Commissioner is not and cannot be empowered to give the final or binding
determinations on the interpretation of the Freedom of Information Act 2014. The
Commissioner is not a judge. While the Commissioner must interpret legislation,
that is always subject to an appeal on a point of law to the Courts.

32. The scope of an appeal on a point of law has been comprehensively reviewed by
this Court in its judgments in Fitzgibbon v Law Society [2015) I IR 516 and in

Allorney General v Davis [2018) IESC 27. The scope of such appeals is clear and
settled.

33. In Fitzgibbon v Law Society [2015) 1 IR 5 I 6 Clarke J. (as he then was) considered
the nature of an appeal on a point of law, and suggested that the scope of review
was greater than in a judicial review. He suggested at p.560 that: "there must be

some difference between even the most restrictive form ofappeal (being an appeal
on a point ofla-iv only) and a judicial review." He continued:-

"[/30] Given that judicial review lies in respect of all public law decisions
affecting rights and obligations, it must be assumed that, by conferring a right
of appeal, the Oireachtas intended that some greater degree of review is
permitted than that which would have applied, in the context of judicial
review, in any event. It is in that context that the concept of an "error within
jurisdiction" may well be relevant. Without seeking to define the parameters
of that concept, there clearly are errors which do not give rise to judicial
review for they do not affect the lawfulness as opposed lo the correctness of
the decision taken. ... "

9

 34. The Commissioner's submissions make no reference to the judgment of this Court
in Attorney General v Davis [2018] IESC 27, where McKechnie J. held at §53:-

"A statutory right of appeal on a point of law will,

(l its wording does

1101

otherwise prescribe, include the following:
• Errors of law as generally understood, to include those mentioned in
Fitzgibbon;
• Errors such as ·would give rise to judicial review including illegality,
irralionality, defective or no reasoning, procedural errors of some
significance, etc.;
• Errors in Jhe exercise of discrelion which are plainly wrong,
notv,,ilhstanding the lalitude inherent in such exercise; and
• Errors offact nexl referred to. "

35. The proper approach to ground factual errors which are alleged to constitute an
error of law is summarised at §54:-

"54. Drawing on what was said in both judgments in Fitzgibbon v. The Law
Society of Ireland and on the authorities cited !herein, including my own
judgment in Deely v. Information Commissioner [2001] 3 I.R. 439, the
following principles may be extracted when considering what issues of fact
may be regarded as issues oflaw:

(i) Findings ofprimary fact where there is no evidence to support them;
(ii) Findings ofprima,y fact which no reasonable decision-making body could
make;
(iii) Inferences or conclusions:

• Which are unsustainable by reason of any one or more of the matters listed
above;
• Which could not follow or be deducible from lhe primary findings as made;
or
• Which are based on an incorrect interpretation ofdocuments. "

36. The concepts of primary and secondly facts do not appear in any central way in
the leading cases on the standard of review under Order 84. Neither is there any
10

 detenninations in judicial review case law positing a different test when it comes
to secondary facts drawn by decision makers from documents. Such distinctions
are central to long established case law on appeals on a point of law. Jnsp. of
Taxes v. Hummingbird [ 1982] I.L.R.M. 421, Kenny J. at p. 426. 1

37. What the Commissioner could say is that principles of judicial review may be
engaged where the grounds of appeal are:-

"Errors such as would give rise to judicial review including illegality,
irrationality, defective or no reasoning, procedural errors of some significance,
etc." (Bullet point 2, Davis)

38. Returning to this appeal, the issues are confined to the interpretation of the
provisions of the 2014 Act, in particular sections 22, 35 and 36.

39. The Commissioner should confine himself to advocating the adoption of judicial
review principles to appeals which raise judicial review type grounds.

And,

should only contend for "deference" and a "standard of review" when the appeal
is grounded on a claim of "unreasonableness/irrationality".

II Presumption under s. 22(12)(b)
40. The Commissioner claims there is no error in the way in which he applied section

22( 12) in his decision.

It is common case that he applied that section m a

particular way and that his interpretation is material to his conclusions.

41. Section 22(12)(b) of the 2014 Act provides:

1

These findings on primary facts should not be set aside by the courts unless there was no evidence
whatever to support them. The commissioner then goes on in the case stated to give his conclusions or
inferences from these primary facts. These are mixed questions of fact and law and the court should
approach these in a different way. If they are based on the intemretation of documents, the court should
reverse them if they are incorrect for it is in as good a position to determine the meaning of documents
as is the commissioner. If the conclusions from the primary facts are ones which no reasonable
commissioner could draw, the court should set aside his findings on the ground that he must be
assumed to have misdirected himself as to the law or made a mistake in reasoning. Finally, if his
conclusions show that he has adopted a wrong view of the law, they should be set aside. If however
they are not based on a mistaken view of the law or a wrong interpretation of documents, they should
not be set aside unless the inferences which he made from the primary facts were ones that no
reasonable commissioner could dra

11

 "Jn a review under this section(b)

a decision to refuse to grant an FOi request shall be presumed

not to have been justified unless the head concerned shows to the
satfafaction of the Commissioner that the decision was jus/ified. "

42. The Minister made two submissions to the trial Judge and Court of Appeal,
being:•

section 22(12)(b) does not apply to exemptions under section 36,

•

in the alternative, if it does apply, it applies only to subsection (1) and
not the public interest override in subsection (3.)

43. The Commissioner erred in law in misinterpreting the presumption under
s.22(12)(b) as applying to a request to which section 38 applies. At pages 2 and 3
of the impugned Decision, under the heading "Prelimina,y Mailers" it stated as
follows:

"First, section 22(12)(b) ofthe FOi Act provides that when I review a decision
to refuse a request, there is a presumption that the refi1sal is not justified
unless the public body 'shows to the satisfaction of the Commissioner /hat !he
decision was justified'. Therefore, in this case, the onus is on the Department
to satisfy me that its decision is justffied. "

44. In Rotunda Hospital v Information Commissioner [2013] 1 IR 1 Macken J. held as
follows at p. 78 in relation to s.34(12)(b) of the Freedom of Information Act 1997
(which is materially identical to s. 22(12)(b)) and the non-operation of the
presumption in respect of exempted records. Having set out the terms of the subparagraph, Macken J. held:-

"This is a ve,y clear slatement which, on its face, appears to apply lo all
decisions. I have no dijjiculty in its applicalion to all circumslances covered
by the right of access in s. 6(1). I have a significant difficulty in its application
to requests made in respect of information exempt fi·om disclosure under Part

12

 Ill of the Act, which by statute mandates a refusal, and to which no right of
access exists. It is difficult to see how it would apply to the provisions ofss. 19
to 32, other than the head in question meeting the terms of the various
sec/ions. Even then ii is d[fficult to see how a head goes about 'just(fying' a
decision in Jhe case of, say, s. 19(/)(a), which exemptsfi·om disclosure, inter
alia, a record which has been or is proposed to be submilted to the
Government for its consideration, which 1 take as the first example of the type
of record covered. Either s. 34(/2) does not apply to such exempt records, or
it is sufJicienJly satisfied by proof that the record in question is, in fact, one
submitted Jo or is proposed to be submitted to the Government. Such proof
would likely suffice !f ii is made by an appropriate person, and could not be
rejected by the respondenl, save in the most exceptional circumstances, of
which 1 can imagine none. Iftherefore s. 3-1(12) ofthe Act does apply, and I do
not accept the re~pondent has established that it does, to Part III records, then
compliance wirh the terms of s. 26(/)(a) also appears sufficient to juslify the
decision made. Jn the present case I am satisfied that that legal requirement
was complied with by the submissions made on the part of the appellant
responding to the criteria mentioned in the section itself. and.from the terms of
its original refusal. As I have mentioned previously in this judgment, neither
the re.\pondent nor the High Court Judge suggested rhat the opinion criteria
mentioned ins. 26(/)(a) were not met. "

45. Macken J. thereby held, albeit obiler but following a full consideration of the
relevant sections, that the presumption (now contained in section 22( 12)(b)) does
not apply in respect of (now) Part IV exempt records, which includes records that
are commercially sensitive or confidential.

46. The Minister was not obliged to satisfy the Commissioner that the decision to
refuse the request was justified. Accordingly, the Commissioner erred in law by
imposing this onus on the Minister and applying the general provision under
section 22( 12)(b) in the manner it did.

47. In the alternative, if section 22(12)(b) does apply it can only mean that the
Minister must justify the refusal by reference to section 36(1 ), i.e. that the record
13

 is commercially sensitive. Once that is satisfied, prima facie the documents must
not be disclosed and the head has discharged the presumption imposed by section
22(12)(b).

48. In this case both the Minister and the Commissioner found that the conditions in
subsection ( 1) did apply, and that the records are commercially sensitive. The the
head "shall refuse" to grant the request under the express terms of section 35( 1).
The records do not lo.!e their commercially sensitivity during or after the
consideration of the public interest override.

49. The mandatory direction in section 36( 1) is in contrast to other discretionary
exemptions in Part 4 of the 2014 Act. For example, the exemption under section
28( 1) concerning Meetings of the Government provides that: "A head may refi1se

to grant an FOi request if ... "Similarly, under section 29(1) Deliberations of FOi
bodies "a head may refi,se to grant an FOi request ... "'

50. This prima facie mandatory position is displaced only where under section 36(3)
where in the opinion of the Minister (the head concerned) the public interest is
better served by release. The wording of the 2014 Act is clear: save in that case,
there shall be no release.

51. The Commissioner has misread Fennelly J's judgment to suggest that Macken J.,
and Fennelly J., were at odds. Fennelly J.'s decision in the Rotunda Hospital is
not an authority for the proposition that the presumption in section 22( l 2)(b)
applies to the public interest override.

52. Critically, Fennelly J. applied the presumption in his consideration of then section
28(1) (now section 37(1), personal information) but not the exemption from
subsection (1). Fennelly was clear al §[113] that: "Thus.for the purposes ofs. 28

of the Act, the records contain personal information. ... Therefore, the records are
prima jacie exempt from disclosure, unless they come within one of the
exceptions. "

14

 53. But, he then went on to address what he termed "the exception to the exemption."
Nowhere does Fennelly J. apply the presumption to that "exception to the
exemption", i.e. the equivalent to subsection (3). The Commissioner fails to
acknowledge this and the implications thereof on its submissions. The
presumption (if applicable at all) had been discharged as the records were prima

facie exempt.

54. The point was not missed by the Court of Appeal which, having identified the
point above regarding Fennelly J.'sjudgment, concluded at paragraph 22:-

" ... I do not believe that there is anything like the divergence in approach
between Fennelly J. and Macken J. that the Commissioner suggests. On the
contra,y, the fact Iha/ Fennelly J. commented that records conlaining personal
information were Ihere.fore prima .facie exempl from disclosure unless coming
wilhin one of the exceptions indicates a starting point ve,y similar to thal of
Macken .J. {{!here was, in/act, the divergence between Fennelly) and Macken
.I. that the Commissioner suggests, I think it would have been inconceivable

!hat Murray CJ and Hardiman J. would have agreed with both judgments.
Moreover. the comments of Macken .I. in this regard were signfficant,
considerate, and deliberate. This was not a question ofan over-broad aside to
be dismissed as mere obiter. Given the significance of what was at issue, I
again think it is inconceivable thal Murray CJ and Hardiman .J. would have
said they agreed with the judgment of Macken .f. if they did not in fact agree
with whal she had lo say in the passage quoted above. "

55. In the recent decision of this Court in Minister for Health v Information

Commissioner [2019] IESC 40 the impugned obiler dicta of Macken J. in Rotunda
Hmpital was cited with approval at §68, where Finlay Geoghegan J. commented:-

"Finally, I think ii appropriate to add that I do nol agree with the general
submission made on behalf of the Commissioner that the scheme of the I 997
Act is in Part JI, to give a broad right of access to records held by a public
body and in Part III, to provide for exemptions and a basis for refusal of that
right of access. The reason I do not agree with !his submission is based on s.

15

 6(7), which expressly provides that nothing in s.6 "shall be conslrued as
applying the right ofaccess to an exempt record". Hence, Part II of/he Act in
s. 6 itse(fmakes clear it does not grant a right ofaccess to an exempt record. "

56. Given the acceptance that the records in this case are commercially sensitive they
must not be released in accordance with the mandatory direction of the Oireachtas,
the same situation pertains here under section 36(1.)

57. To apply such a presumption is to rewrite the stated consequence and legislative
direction in subsection (1) that a head shall not disclose the records.

58. The argument of the first Notice Party2, as accepted by the High Court but not the
Court of Appeal, that the 1997 Act, as amended, has been repealed and replaced
without alteration was somehow a rejection of Macken J's and Fennelly J's
judgmenls was misplaced. In the absence of any contrary authority or any
statutory change, it must be presumed that the Oireachtas intended to keep the
interpretation as posited by the majority Supreme Court in Rotunda Hospital
(Denham J. dissented, not on this issue.). See K v The Minister for .Justice &
Equalily [20 l 8] IESC 18 for modem confirmation that the Barras presumption
applies in this jurisdiction.

59. Any right of access as created by section 11(1) is tempered by section 11(7), such
that:-

"(7) Nothing in this section shall be construed as applying the righl of access
to an exempt record(a) where the exemption is mandatory, or
(b) where the exemption operates by virtue of the exercise of a
discretion that requires the weighing of the public interesl, if !he
factors in favour ofrefusal outweigh those in favour ofrelease."

In the High Court, the first notice party withdrew para 17(b) of his written submissions wherein he
had asserted that Fennelly J. had: "expressly accepted that it [the presumption] applied to cases
involving exempt records..."

2

16

 60. Thus, insofar as the right of access applies to an "exempt record" so defined
(which includes a commercially sensitive record such as that at issue herein) it can
only so apply following the weighing of the public interest and is dependant on
the outcome thereof. There is no prima facie "right of access" to such an exempt
record and there is no reason for the presumption to apply to such records.

61. Underpinning the Commissioner's submission on section 22 is the need to read
section 22(12) entirely on its own, without regard to the Oireachtas's specific
intention elsewhere in the 2014 Act. This is in contradiction with the idea that a
statute is to read as a whole, that the intention of the Oireachtas is included in the
enactment taken as a whole, and that a harmonious interpretation is to be arrived
at, see Frescati Es/ates v Walker [1975] lR 178.

62. Once construed as a whole it is evident that the Oireachtas did not intend the
section 22(12) presumption to apply to prima facie exempt records. These two
provisions dovetail: insofar as there is a prima facie right of access to a (nonexempt) record, the onus is rightly on the body resisting same. That same onus
makes no sense where the record is prima facie exempt under an express
subsection and where the right of access does not yet (and may never) apply. To
read the onus as so applying is to rewrite section 11 (7) and would in effect make
the right of access applicable at a stage before the Oireachtas intended.

63. The Commissioner submits that the presumption applies to all decisions to refuse,
including those to exempt records. Nowhere does the Commissioner address the
incongruity between section 36(3) and the presumption in section 22(12)(b). If a
record is, for example, commercially sensitive, the public interest balance as
specifically set by the Oireachtas requires the head to be satisfied that the public
interest favours disclosure. Thus, if all things are equal the records will not be
disclosed in accordance with the words actually used. The specific test applicable
to the public interest consideration would be rendered inapplicable (and the law
rewritten) if the Commissioner is correct and the refusal is presumed wrong.
64. In F.P. v The Information Commissioner [2019] IECA I 9 the Court of Appeal
considered the application by Commissioner of the same public interest test as

17

 was considered in Rotunda Hospital. There was no reference to the presumption
being applicable, nor any suggestion of the Commissioner's task was thereby
impeded.
65. There is no basis for any supposition of an investigation being impeded by the noapplication of presumption. The assertion of a seeming advantage that public body
holds the information and could determine that it is exempt on the basis of
information known to it cannot stand: the Commissioner has ample statutory
powers-under sec1ron-T.r-oT'tfre-Acf-To-compmne-provlston-oA nformation71pon
which a refusal was based insofar as the reasons contained in the refusal are
considered by the Commissioner to be not adequate.

Raising the Legal Interpretation Before the Commissioner
66. The Commissioner contends that the point raised was not one that the Minister is
entitled to raise in this appeal, as it was not raised before the Commissioner.
Nevertheless, the Commissioner acknowledges it was "on the agenda." This
argument expressly relies on the reasoning of Fennelly J. in Rotunda Hospital.

67. However, in that case the point of law was one not raised by the Appellant, was
not in any way considered by the Commissioner and the issue had not featured in
the decision at all; see §85. Thus, the issue was not one which the Commissioner
had the opportunity to consider, and in respect of which an "appeal" was a
misnomer: it was not determined at first instance.

68. Thal materially differs from this case where the Commissioner had considered
section 22( l 2)(b) in his decision by way of a preliminary matter. He had not
specifically invited comment thereon. The provision was fully engaged and was
relied upon by the Commissioner, who had the opportunity of considering it. He
was obliged by independent obligation to apply the law correctly.

69. Any principle that any person (in this case the Minister) in a non-judicial context
must correct an expert adjudication statutory body on the law it applied and used
in its decision is one that requires a very particular authority. If applicable, such a
principle may operate to confer an effective immunity on a statutory body from

18

 having errors of law corrected unless an individual (who may not have legal
assistance) contested same in advance, notwithstanding that one cannot know the
contents of a decision until it issues.
70. In any case, Fennelly J. more correctly expressed the principle at paragraph 90
where he held that:-

"The Acl is clear: an appeal lo the High Cow·/ lies only in re1lpect of a poirll
of law. II must be a point oflaw involved in the decision under appeal. Thus, I
do not think the High Court should have entertained the poinl. " [Emphasis

added.]

71. Mc Killen is also relied upon. It is clear from paragraphs 61, 62, 67, 68 and 69 that
Noonan J. was applying this rule to new fact-based arguments, not legal ones.
Insofar as the legal argument was concerned, Noonan J. substantively rejected it,
see paragraph 76, but not on the basis it was not raised before the Commissioner.
72. While McGovern J. applied Fennelly's dicta as above in Minister for Education v.
The Information Commissioner [2009] I I.R. 588 he also referenced other cases

concerning the introduction of new evidence, not legal arguments, much less
statutory provisions which were considered an applied in the impugned decision.

73. In Wes/Wood Club v Information Commissioner [2015] 1 IR 489, at 51, Cross J.
impugned the failure of the Commissioner to repudiate a legally erroneous draft
finding, notwithstanding that it was not challenged or raised before the
Commissioner; see §§ 103 and 104.

74. By any reading, section 22(12)(b) was centrally involved in the impugned
decision. It is no major surprise that the Court of Appeal at paragraph 15
determined it was appropriate to consider the point:

" I 5. While I would entirely agree with what I idenlify as the
philosophy underlying cases such as !he Rotunda case and the South
Western Health Board case that no encouragemenl should be offered
19

 Jo parlies Jo hold back points, I do

1101

believe thal is what happened

here. Neither do I see the siluation as comparable lo whal was in issue
in the Rotunda case."

75. Even taking the Commissioner's position at its high point, telling the Minister
section 22( 12) would be applied did not amount to the characterisation that is
advocated in this appeal. As was correctly remarked by the Court of Appeal at
paragraph 15:-

" ... the issue of s. 22(1 l)(b) was always lo the fore of the
Commissioner's mind. He referred lo it in correspondence, though by
asserting that a particular legal situation prevailed rather than in !he
context of inviting submissions on the issue, and the issue featured
prominenlly in the decision. Jn the circumstances, I believe the
Minis/er was entitled lo advance the arguments that he did in the High
Court and the High Court was correct to rule on them. "

76. To this might be added that the Commissioner at no point advised that he in fact
would apply section 22(12)(b) to section 36, or to section 36(1) and (3), which the
Court of Appeal has found to be an error oflaw.

77. The issue engages an important policy question of a different kind, of particular
relevance to the 2014 Act. Is it intended that the appeal scheme under the 2014
Act be "lawyer-led"? The Minister was not legally advised and did not engage in
this appeal to the Commissioner through solicitors.

78. If the law is, as the Commissioner seeks it to be, that he can issue a decision with
errors of law (as found by the Court of Appeal) but is immune lo challenge unless
the point was the subject of prior submission, any prudent party must engage
lawyers before making any submission to the Information Commissioner.
79. It would be tantamount to an immunity from appeal on a point of law, contrary to
that specific right of appeal as specifically created by the Oireachtas. This
significant

consequence

was

not

referenced

by

the

Commissioner

in

correspondence.

20

 80. There cannot be one rule for requesters and another rule for prescribed body. If
the Commissioners argument holds sway, it will impede and transform the process
in a manner contrary to the requester's effective use of the scheme.

81. It is surpnsmg that the objection remains, as one would might expect the
Commissioner to embrace an opportunity before the Supreme Court to have
certainty if his approach in decisions is grounded on a legal error or not.

(III) Section 36

82. The Commissioner erred in his interpretation of section 36 which was applied to
the Minister's decision not to disclose the records.

83. The High Court "reviewed" this aspect of the Commissioner's decision in a
number of short paragraphs. No reference was made to the principles governing
statutory interpretation, in contrast to the focus on the "standard of review" to be
applied in the appeal. This has been addressed above.

84. By contrast, the Court of Appeal applied well known principles of interpretation to
arrive at the expressed intention of the Oireachtas.

85. Section 36(1) of the 2014 Act provides in relevant part:

"36(1) Subject to subsection (2), a head shaJ/ refuse lo grant an FOi request if
the record concerned contains-

{ ... J
(b)

financial,

commercial,

scientific or technical or other

information whose disclosure could reasonably be expected lo result in
a material financial Joss or gain lo the person lo whom the information
relates, or could prejudice the competitive position of that person in
the conduct of his or her profession or business or otherwise in his or
her occupation ....

21

 (3)

Subject lo 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 belier served by granting than by refusing lo grant the FOi
request."

86. In refusing the FOi request, the Minister was of the opinion that the second
criterion under section 36(1)(b) was satisfied, i.e. enet's competitive position
could be prejudiced in the event of disclosure. The Commissioner agreed,

-

-

commenting at page 6 of the determination:

" ... I accept that in broad terms, the details provided point ID a possibility that
enet 's competitors and/or customers could seek

ID

use the information in the

contracl to their advantage, thereby prejudicing enet 's competitive posilion. "

87. The consequence of the criteria being met under subsection (1) has been set by the
Oireachtas in mandatory terms: 'a head must refuse to granl an FOi request'.
There is no discretion once the conditions are fulfilled.

88. Subsection (3) provides for the disapplication of the direction under subsection (I)
where "/he public inlerest would, on balance, be better served by granting than by

refusing to granl the FOi request."

89. It was common case that the conditions in subsection (1) were met; the record was

prima facie exempt as being commercially sensitive. The Commissioner fell into
error when applying the test in respect of public interest under section 36(3). The
errors are critical to the decision as the public interest override was the reason the
records were to be released.

90. As can be seen from page 7 of the Commissioner's decision he overturned the
Minister's decision not to release the fourth record because of the parties not
having pointed to "any exceptional circumstances that apply in this case such as to
override the need for transparency."

22

 91. At paragraph 3 of page 7 of the decision, the Commissioner expressly applied and
adopted its own views in Case 99183 (McKeever Rowan) and Case 98049 (Henry

Ford) to section 36. The Commissioner expressly adopted, for the purpose of
section 36, an interpretation that the Minister could not reasonably be expected to
keep confidential information or commercially sensitive information confidential
in the absence of exceptional circumstances.

In the same paragraphs, the

Commissioner expressly adopted for the purpose of section 36 an interpretation
that no public body could have an understanding that the details of the expenditure
of public funding would be kept confidential following the enactment of the 2014
Act.

92. The Commissioner read into s.36 a presumption that all records containing
commercially sensitive information are to be released unless there are exceptional
circumstances justifying their non-disclosure. This subverts the entire scheme in
section 36 and the interplay between subsection (1) and (3).

93. Further, the Commissioner interpreted section 36 so that the Minister was required
to demonstrate that releasing of the contract would "totally undermine" enet's
business (see fifth paragraph, page 7). The Commissioner's own decision in Case
98114 is quoted as authority for this. The Commissioner manifestly erred in
requiring a disclosure to "lotally undermine" the business of the company or to
deter private bodies from transacting business with the State in order for the public
interest test to be satisfied. This reasoning is a further, if collateral, undermining

of the criteria set by the Oireachtas in section 36( 1)(b) of the Act.
94.It may be relevant to note that in a Decision 53319 of 4 July 2019, the
Commissioner applied very different considerations such that:-

"Section 36(/)(b) itself reflects a public interes/ in the protection of records
containing h?formalion that could prejudice a private company's competitive
position in the conduct of its business. This Office takes the view thal the FOi
Ac/ was designed to increase openness and transparency in the ·way in which
FOi bodies conduct their operations and, in general terms, that it was no/
designed as a means by which the operations ofprivate enterprises were to be

23

 opened up to scrllliny. The requested records are clearly concerned with the
plans of a private enterprise and ii seems to me that there is significanl weight
to the public interest in protecting them accordingly. "

Statutory interpretation
95. Neither "exceptional circumstances" nor "the need to show a total undermining"
of an enterprise is the statutory test; there is no justification for either rewriting the
section-or- implying-in-either statutory condition. In doing_so the_Commissioner
erred in law.

No authority is quoted by the Commissioner to support this

interpretation of section 36. It is contrary to any interpretation borne out by the
application of any of the normal rules of statutory interpretation.

96. The stated objective of statutory interpretation is well established to identify the
intention of the Oireachtas. For example, in Ni Eili v Environmental Protection

Agency and Roche (Ireland) Ltd [1997] 2 ILRM 458 Kelly J. stated:- "All
swtutory construe/ion has as ifs object the discernmenl of the intention of the
legislature ... "3 This is now the law under s.5 of the Interpretation Act 2005.

97. Effect is given to the intention of the Oireachtas by applying the ordinary and
plain meaning of the words chosen by the Oireachtas to express its intention.

98. In Lawlor v Flood [ 1999] 3 IR 107 Denham J in the Supreme Court emphasised
the importance of the ordinary meaning rule in determining the legislature's
intention and in respecting the separation of powers envisaged by the Constitution.
She said:

"In applying the ordinary meaning of the words the Court is enforcing the
clear intention of the legislawre. This aspect of statutory construction is an

3 In Macks Bakeries Ltd. v. O'Connor [2003] 2 I.R. 396 the High Court stated:- "The object of all
slall/tory i11terpre1atio11 is to discern the intention of /he legislature." In Kelly v. Minister for
Environment [20021 4 I.R. 191 McKechnie J. slated that: "When a cozwt is asked to imerpret or
constn,e a statute, ils stated ohjective is and must be to discover "the intention of /he legislature". The
uilimate aim of every primary approach to the interpretation of legislation is to identify the will of
parliament. This obligation equally applies even when it is necessary lo invoke any of the secondary
aids to interpretation. "

24

 essential part of the separation of powers. Further, it is an illustration of
appropriate respect by one organ ofgovernment to another. "

99. Costello J in O'Reilly v. Limerick C01poratio11 [1989] I.L.R.M. 181 summarised
why it is not appropriate for courts to exercise any form of legislative power:

"It is not appropriate for courts to make decisions in the legislative .\phere.
Firstly, ii infi'inges the separation of powers envisaged by the Constitution.
Secondly, the courts have no democratic mandate from, or accountability lo,
the People in respect of the making of legislation. Thirdly, individual judges,
or judges silting together, do not generally have the special qualifications and
expertise to make legislalive choices."

Fourthly, the limited parties in

litigation and adversarial procedures of the court, with their rules of
procedure and evidence, are in inappropriate forum and process for the
making ofdecisions as to general policy."

I00.

This applies with equal force to administrative tribunals and statutory decision

makers such as the Commissioner.

101 .

The balance between competing interests, in particular those of third parties

such as enet, has already been considered and struck by the Oireachtas in its
detailed and considered enactment of section 36.

No need to show "exceptional circumstances"
102.

The Commissioner cannot rewrite the provision by inserting words into the

section which he believes should apply or would be more in keeping with goals of
the Act in which the Commissioner is invested. The Commissioner is required to
consider the stipulations in the enactment, not ignore or reconstruct them.

103.

At paragraph 49 - 51, the learned High Court Judge approved the

interpretation of the Commissioner that had required the establishment of

4

From a subjective standpoint, where an enactment deals with the administration of justice, court may
feel fully equipped and experienced. This contrast with legislation dealing with issues unrelated to the
administration of justice, such as the Health Acts or Employment Acts.

25

 "exceptional circumstances" to justify the refusal. The Court of Appeal was not
willing to endorse that, and correctly found it to be an error of law.

First, the Commissioner has read a test of "exceptional circumstances" into

104.

the section when there is no justification for doing so. Such test is nowhere found
in the subsection. As can be seen from page 7 of the Decision, the Commissioner
actually overturned the decision of the Minister not to release the fourth record,
and he expressed his reasoning-clearly, as he is required-to do: the_reason_was
because the parties not having pointed to "any exceptional circumstances that
apply in this case such as to override the need for transparency.".

If the Minister or enet had pointed to any exceptional circumstances, relying

105.

on the Commissioner express and formal reasoning, it follows that the Minister's
decision would not have been overturned. This is manifestly the application of a
test.

i 06.

If the Oireachtas intended that s.36 would only require non-disclosure in

"exceptional circumstances'' it would have just said so. The Oireachtas is more
than capable of using the language of "exceptional circumstances."

107.

Second, the High Court justified the reading in of "'exceptional circumstances"

based on the passages of McGovern J. and O'Donovan J. quoted above. However,
this is a misreading of those passages which referred to "exceptional cases" not

"exceplional circumstances". The exceptional cases referred to were the express
statutory exemptions which are found in the Act. Neither judge read into section
36 (or any exempting provision) that in addition to the requirements contained in
the section a Head must demonstrate exceptional circumstances.

108.

Third, it is a non-sequitur to conclude that because there are exceptional cases

where disclosure is required not to be made (the exemptions) that such exemptions
must be subjected to an "exceptional circumstances" test. Just because there are
specifically crafted exemptions under the Act, it does not follow that such
exemptions must only apply in "exceptional circumstances".

Each exemption

26

 must be interpreted by reference to the text enacted by the Oireachtas, and there is
no place for reading in words or other onerous requirements into the section.

109.

Fourth, the insertion of an "exceptional circumstances" requirement has the

effect of undermining the purpose and objective of s. 36 which is to protect third
parties from the release of commercially sensitive material. The Commissioner
fails to recognise that purpose of section 36. The Commissioner in his decision
repeatedly emphasised the broad goals of the Act, while minimising the goal of
section 36 itself. The intended objective of section 36 is diminished in the
Commissioner's interpretation in favour of disclosure. The interpretation
unilaterally adopted by the Commissioner is one which would disproportionately
favour disclosure notwithstanding the prima facie application of section 36.

110.

The Commissioner's decision as a whole is subtended by the opinion that

contracts with State bodies should be transparently disclosed and that the 2014
Act exists to achieve this. This is to ignore the enactment of section 36, the
purpose of which is to prima facie protect the commercially sensitive information
of third parties and to exempt records from disclosure which fall within the terms
of the enactment passed by the Oireachtas.

111.

Given the closeness of language, exceptional cases/circumstances, the Court of

Appeal expressed the sentiment it might have been prepared to forgive this legal
error. It is respectfully submitted that this Court should not endorse that approach.

112.

With respect, it does not matter why the error arose, or how easy it is to make

the error, or that the Information Commissioner might possibly have meant
something different. The manner in which the Commissioner expressed himself,
cannot be somehow disregarded, and where unlawful ought not be given a
favourable reading.

Totally undermine test

113.

The third factor on page 7 (sixth paragraph) of the Commissioner' s decision

also adopts an unlawful test of "totally undermine ".

In this regard, the

27

 Commissioner repeats the points of principle relied upon above when assessing
the imposition of an "exceptional circumstances" test.

114.

There is no basis for the imposition of such high standard which is contrary to

the test set by the Oireachtas for establishing commercial sensitivity.

115.

If such a harsh test were intended the Oireachtas would have so legislated.

116.

The "totally undermine" test is at odds with the purpose of section 36, which is

to protect commercial sensitivity. If it were applicable it would make more sense
for it to be the test by which commercial sensitivity was established in the first
instance, but the Oireachtas choose a different test.

117.

The Court of Appeal rejected attempts by the Commissioner to minimise, or

deflect from, this error in the decision:-

"32. The second suggested error is, in my vie'w, altogether more fundamental.
At p. 7 ofhis decision, the Commissioner stated:

"[t}hirdly, neither the Department nor enel has demonstrated to me
that releasing the contract would 'totally undermine' enet 's business
(see Case No. 98114 above). "

33. The reference to the earlier decision, Case 98114, is rather unfortunate.
As quo/ed earlier in !he decision, Case 98114, Eircom pie. v. The Deparlmenl
of Agriculture and Food & Ors. did not set a threshold at a requirement for
the total undermining of a company business. Rather, the inslance of a
situation where a business would be totally undermined was offered as an
example of-where the public interest in openness would be trumped. However,
by p. 7 of the Commissioner's decision, this is no longer an example, but it is
now being stated as a fact that the Department nor enet has Jailed to
demonstrate that releasing the contract would "totally undermine" enet 's
business. Jn my view, this represents a clear and fimdamental error. There is
no requirement that the business of a company engaging with the State should

28

 be lotally undermined. It seems unlikely in the extreme /hat the Oireachtas
would ever have contemplated selling the bar at such a level. What if the effect
of release was lo undermine /he business? To undermine significantly? To
undermine seriously? Would such circumstances not militate against directing
disclosure?

3-1. In my view, ii is an inescapable conclusion that the introduction of a
requirement o(lolally undermining was an error in law, was an error or real
importance and is such that the decision cannot be allowed stand. "

118.

The Commissioner accepts, as he must do, that he is not entitled to apply an

"exceptional circumstances test" or a "totally undermine" test.

119.

Instead, the Commissioner is coerced into arguing that, in fact, such tests were

not applied by the decision maker. The explanation does not accord with the
actual decision or the express underlying rationale identified in the decision itself.
Insofar as the Commissioner now asserts that the reference to "lota/ly undermine"
was not the application of a test, his High Court submissions at §69 reverenced it
as an eminently reasonable standard, that was applied in previous decisions.

120.

A test is a formula or means of establishing whether an item (in this case a

record) falls within a category (in this case a statutory exemption), or not.

121.

When trying to defend with this issue the Commissioner's own submissions in

this Court cannot avoid describing a test: "the factor that ii would not totally

undermine a business was reasonable to set ouJ.If on the other hand, it was Jhe
case that despite the counter-factors identified, a disclosure may Jotally
undermine a business, then a different balance may be struck ... " see §80.

122.

The error is that, in law, the test is clearly set out by the Oireachtas in the

words enacted in section 36(3). The Commissioner is not at liberty to substitute it
with some other formula for establishing whether a record falls within a particular
exemption, or not.

29

 Limited consideration of transparency

It also demonstrated that in considering the public interest the Commissioner

123.

really only focused upon one issue: transparency. This is clear from the additional
requirement placed by lhe Commissioner on page 7 that "exceptional

circumstances" need be established to "override the need for transparency." This
is again to rewrite the Act, by the imposition of a new criterion (transparency) and
a need to overcome that new criterion by showing "exceptional circumstances".

124.

To decide that, because a commercial entity was the successful bidder at a

tender process for the use of State owned asset which generates revenue, the
records should be disclosed is to render s. 36 of no effect and deprive that
enactment of its purpose.

125.

The Commissioner put weight on the fact that eNet was the successful bidder

at a tender process for the use of a State-owned asset which generates revenue and
that there should be transparency around this transaction. The Commissioner
fundamentally erred: the Act provides that there should be transparency around
the transaction unless the exemption under s. 36 applies.

Right of access begs the question
126.

The Commissioner when interpreting and applying section 36 was mindful of

the principle of openness expressed in section 11(3) of the Act, as referred at
paragraph 6, page 7 of the decision. But he failed to identify or make reference to
section 11 (7) and that that the right of access cannot apply to an exempt record
until the decision is made to release it, which begs the question.

127.

Insofar as the Commissioner argues that there is no "right of access" pending a

final decision, the point cannot be in his favour.

Section 22(12)(b) onus - again
128.

The Court of Appeal rejected the High Court judges repeatedly used the onus

under section 22(12)(b) as a justification for the Commissioner's approach to the
public interest. The presumption is not applicable either at all or at at this stage,
see above.
30

 129.

In any case, to permit the onus to have such a wide application as envisaged

by the High Court means that it applied to the establishment of the commercial
sensitivity in the first instance. But, it is common case that the record was
commercially sensitive: the Minister satisfied the onus. But under the reasoning
applied, the same onus was then made applicable to the issues of the public
interest. There is no justification for this double use.

130.

In any case, applying the onus to a public interest evaluation is inconsistent

with an objective consideration of the public interest where the record enjoys a
recognised statutory commercial sensitivity. There is no basis for considering that
the Oireachtas made the onus operative within that consideration. To do so would
in effect create a kind of statutory presumption that the public interest required
disclosure of the commercially sensitive record. That is at odds with the purpose
and wording of section 36.

Previous OIC decisions
131.

It is accepted that previous decisions of the Commissioner are not binding on

this Honourable Court; however, where such said decisions are well reasoned, it
may be appropriate for the Court to be informed of them.

132.

In this regard, reference is made to Irish Times & Department of Tramport

(Case No. 0600054, 27 July 2010), which concerned a request for the release of
records relating to the large-scale transport investment programme entitled
'Transport 21 '. In this case, the public interest was considered in the following
way:

"Public Interest

I also consider it reasonable to accept that release of the details as contained
in the records would be to the advantage of the tenderers involved,
particularly where the effectiveness of normal competitive tender processes is
likely to be reduced by the limited number of tenderers thal would be capable
ofprogressing such large scale and complex projecls such as those the subject
31

 of the records. Jn this regard, ii may be worth reiterating that only four
consortia world-wide met the pre-qualification criteria for Metro North.

As set out earlier in this decision, despile !he fact that the records at issue in
this case can be seen as historic, I am satisfied that renderers could derive
current total capital costs by combining details in the records with other
details in the public domain, which could result in tendered prices that are
towards the top end ofthe budgets concerned. I have-also, as-seLouLear/ier,
been satisfied that Jenderers would be similarly able to arrive at current
component costs (such as operating budgets and risk allowances).
Particularly where quantitative and qualitative assessments ofrisk allowances
are concerned, I have been satfajied that such disclosure could lead to a
greater risk of inflated compensation claims from contractors than might
otherwise be the case (such risk being likely to exist in respect of the
Transport 21 projects until final accounts are signed off). I have also been
satfajied that disclosure of details relevant lo the financing of the Line BI
project could compromise the RPA 's ability to negotiate the best possible
terms for funding and security packages for other Transport 21 projects.
Overall, I accept that scenarios such as the above could result in the various
Transport 2I projects becoming excessively expensive, which is not in the
public interest of ensuring value for taxpayer money for 1ha1 overall
investment programme.

Tims, having considered the public interests in favour of and against release
of the details at issue, I find that it is appropriate for me, in the circumslances
of this case, to find that the public interest in favour of withholding the details
outweighs the public inlerests in their release. I find, accordingly, J/wt !he
remaining details should no! be releasedfurther to section 21 (I) (c) ofthe FOi
Act."

133.

The views of the Commissioner as set out above are rational, sensible and

logical. It is fair to paraphrase the findings therein as being that the release of
certain commercially sensitive information would be detrimental to the tender
process by reducing the competiveness inherent in such a process.

32

 134.

The Commissioner did not explain in the impugned decision why it did not

determine this appeal in a manner consistent and comparable with its decision in
the Irish Times case. The issues raised in the said decision were similar to those
raised herein, though the public interest was found to lie in favour of nondisclosure of the relevant records. It is submitted that the same result should have
followed.

135.

Thus, no reason is cited for the seeming contradiction identified at page 7

(fifth paragraph); same was provided in the case cited Case 980499 (Henry Ford).
The seeming contradiction was not put to the Minister. There may be no
contradiction in that it is possible for some competitors to use the information
competitively and others to be deterred from tendering.

136.

The second factor on page 7 (sixth paragraph) is speculative; nothing is cited

in favour thereof.

137.

The third factor has been addressed above.

138.

The fourth factor on page 7 (sixth paragraph) suggest that it would be open to

the department to put more information in the public domain. That ignores that
such other information is likely also to be commercially sensitive, and thus the
department "shall" not disclose same.

139.

Finally, there was no consideration of the actual harm posited by enet. Not to

include that in a deliberation of the public interest demonstrates the application of

a test not envisage by the 2014 Act.
(IV) Section 35 - duty of confidence

140.

The Commissioner' s reasoning in the impugned decision under this section is

confused and wrong. He erred in law in finding that he was not satisfied that
releasing the fourth record would breach a duty of a confidence for the purpose of
section 35(1)(b) of the 2014 Act. This was a misinterpretation of that provision
and operates to deprive it of any real effect.
33

 At page 8 paragraph 5 the decision records that: 'on examining clause 32, I

141.

note that it itselfis subject to the FOi Act'. And, the point is picked up again at the
final paragraph, where it is said that 'although Clause 32(1) of the contract

requires the parties to keep the contract confidential, clause 32(2) disapplies this
obligation to disclosures which are required under the FOi Act ... ' This is circular
reasoning.

No authority is quoted in support of this approach and interpretation. It is

142.

submitted that this reasoning is defective and unfair. If this decision stands, a
body that enters into an agreement with a private company involving an express
duty of confidentiality, but which informs the private body that it is subject to
release under the provisions of the 2014 Act, is precluded from relying on section
35 because the reference to release under the FOi renders the section inapplicable
because the duty is broken by the inclusion of the reference.

143.

That is an irrational and circular reasoning or interpretation of section 35(1)

(b).

144.

In one sense it compels of the public body the impossible, or that which it

cannot do or in any event should not do. It also has the far-reaching consequence
that a public body that includes such a clause in a confidentiality agreement is
thereby precluded from relying on section 35. That cannot have been the intention
of the Oireachtas.

145.

If section 35 is not available to prescribed bodies in this circumstance the

section is made impotent in the context of its basic effect and purpose.

146.

The difficult nature of the reasoning becomes clear when one considers that

the legal effect now posited by the Commissioner can only be escaped if a public
body does not inform a third party that the confidentiality is subject to some
higher authority, such as a court order or a decision under the 2014 Act.

34

 147.

But concluding contracts that on their face promise to private parties (such as

enet) that confidential information will not be disclosed by the public body, are (a)
not true given that the 2014 Act is of general application to prescribed public
bodies and (b) it is contrary to the overall objectives of promoting and informing
about the transparency requirement in the 2014 Act. That interpretation of section
35( 1)(b) which compels the absurd or the impossible is not normally to be
attributed to the legislature: /ex 11011 cogit ad impossibilia.

148.

The fact that the contract contained a statement concerning the application of

2014 Act is legally irrelevant: the Act is applicable whatever the terms of the
contract, save to the extent permitted by the very terms of section 35( 1)(b) itself.
The impugned reasoning negates this latter exclusion.

149.

The Commissioner further erred in law in finding that the parties did not have

a mutual expectation of confidentiality concerning the contract. Same was
contained in the contract and was submitted to the Commissioner by enet. In any
case, the Commissioner's decision on that aspect also relied on the wrong and
circular reasoning that the relevant contractual clause did not put the contract out
of reach of the 2014 Act. No contractual provision or other agreement ordinarily
can.

t 50.

•

In addition, the Commissioner erred in law:-

in finding that the records should be disclosed because enet entered into a
contract with the State to manage a valuable State owned asset which would
bear income for enet;

•

in finding that the Department's initial proposal to release the contract in the
public interest undermined the assertion of the parties felt bound by mutual
expectation of confidentiality.

Section 35(2)
151.

The Commissioner erred in considering matters under section 35(2) without

making a specific finding in respect of Section 35( 1) of the 2014 Act, 2014.

35

 152.

The Commissioner also erred in the manner in which it applied section 35(2),

which provides:-

"Subsection (I) 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 iliormation concerned would constitute a breach of a

-

-

duty ofconfidence that is provided for by an agreement or stalllte or otherwise
by fow and is owed lo a person other than an FOi body or head or a director,
or member of the staffof, an FOi body or ofsuch a service provider."

153.

The Commissioner held this sub-section to disapply section 35( I) in this case

as there was an agreement between the head and the service provider.

154.

That is a misreading of section 35(2) which applies to a record prepared by the

head (or other person acting as agent such as a service provider) in the course
performance of his or her functions qua head. In this instance, enet was a third
party, not a service provider performing the functions of a head: it did not
negotiate an agreement on behalf of the head with itself.

155.

The duty owed in the relevant record (the agreement) is owed by the head to a

third party that is such a third party in the context of that agreement. That the third
party is also a service provider pursuant to that agreement is not the issue. In this
instance enet is the third party. It is owed the duty of confidence by reason of a
clause in the agreement.

156.

That the section applied to such records only as are created by a head (or

service provider acting in his or her stead) in the perfom1ance of the relevant
function qua head is clear from the use of the phrase "or of such a service
provider." [Emphasis added.] The service provider thereby referenced is the same
as that mentioned in the earlier brackets who created the record acting qua head.

36

 157.

If the meaning contended for the by the Commissioner there can never be a

duty of confidence as between a public body and any service provider with which
it enters a contract; see page 8, seventh paragraph. In that reading there was little
sense to the creation of such a confidence in section 35 (l)(b) by way of
agreement.

158.

If that were the intention of the Oireachtas there can never be a duty of

confidence in the relationship as between a public body and a service provider.
Such a stark and wide prohibition would have to be simply so stated. Any such
negation of the right to contract must be read proportionately.

159.

Rather that being of general application, the prov1S1on (insofar as it is

concerned with service providers) is aimed at service providers who step into the
shoes of the head ("such a service provider") and thereby assumes the function
thereof under the Act. It is in effect an anti-avoidance measure that prevents such
a service provider refusing to release records that are properly those of the head.
From its wording the sub-section is primarily aimed at the head (and other staff
thereof) and it is in that context only that service providers are excluded for
enjoying confidentiality.

160.

The record in this case was an agreement: it cannot be said to be " prepared"

(solely) by the head, nor did it solely relate to the performance of that person's
functions, which can necessarily only refer to functions relevant to the 2014 Act.
The agreement was a document " prepared" (if it be so) by two separate entities
and was from enet's perspective prepared in the course of commerce. Enet was
not a service provider at the time of preparation; it became that following the
conclusion of the agreement.

161.

In the circumstances, section 35(2) was not applicable.

Conclusion
162.

The Commissioner's decision manifests significant errors of law which were

directly pertinent to the decision taken and the decision should be set aside.

37

 September 27'" 2019
Word Count: [12,068]

DAVID DODD BL
CONOR POWER SC

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